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ORTH CAROLINA 

REGISTER 



VOLUMIll • ISSIJE2« Pages 171 -26g 
July 15, 1998 

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e Abuse Professionals, Certification Board 



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JMSIIhl) BV 
The Office of Administrative Hearings 
Rules Division 
PO Drawer 27447 
Raleifih, NC 27611-7447 
Telephone (919) 733-2678 
Fax (919) 733-3462 




This publication is primed on permanent, acid-free paper in compliance with G.S. 125-11. 13 



For those persons that have questions or concerns regarding the Administrative Procedure Act or any of it 
components, consult with the agencies below. The bolded headings are typical issues which the give 
agency can address, but are not inclusive. 



Rule Notices, Filings, Register. Deadlines, Copies of l*foposed Rules, etc. 



Office of Administrative Hearings 
Rules Division j „- 
Capehart-Crockef House 
424 North Blount Street 
Raleigh, North Gstroliria 2760 1-281 7 

contact: Molly Masich, Director APA Services 
Ruby Creech, Publications Coordinator 



(919) 733-2678 
(919) 733-34^2 JF AX 

mniasich@oah.state.nc.us 
rcreech@oah.state.nc.us 



Fiscal Notes &lEconomic Analysis 

Office of State Budget and Management 

116 West Jones Street 

Raleigh, North Carolina 27603-8005 

contact: Mark Sisak, Economist III 
Anna Tefft, Economist II 



Rule Review and Legal Issues 

Rules Review Commission 
1307 Glenwood Ave., Suite 159 
Raleigh, North Carolina 27605 

contact Joe DeLuca Jr., StafT Director Counsel 
Bobby Bryar. Staff Attorney 



(919)733-7061 
(919) 733-0640 FAX 

msisak@osbm.state.nc.us 
ateffl@osbm.state.nc.us 



(919)733-2721 
(919) 733-9415 FAX 



Legislative Process Concerning Rule Making 

Joint Legislative Administrative Procedure Oversight Committee 

545 Legislative Office Building 

300 North Salisbury Street (919) 733-2578 

Raleigh, North Carolina 2761 1 (9 1 9) 71 5-5460 FAX 



contact: Mary Shupidg, Staff Liaison 



marys@ms.ncga.state.nc.us 



County and Municipality Government Questions or Notification 

NC Association of County Commissioners 

2 1 5 North Dawson Street (9 1 9) 7 1 5-2893 

Raleigh, North Carolina 27603 



contact: Jim Blackburn or Rebecca Troutman 

NC League of Municipalities 
2 1 5 North Dawson Street 
Raleigh, North Carolina 27603 

contact: Paula Thomas 



(919)715-4000 



This piihlicaiion is printed on permanent, acid-free paper in compliance with G.S. 125-11. 13 



NORTH CAROLINA 
REGISTER 




Volume 13, Issue 2 
Pages 171 - 260 



July 15, 1998 



This issue contains documents officially filed 
through June 23, 1998. 



Office of Administrative Hearings 

Rules Division 

424 North Blount Street (27601 ) 

PO Drawer 27447 

Raleigh, NC 2761 1-7447 

(919)733-2678 

FAX (919) 733-3462 



Julian Mann III, Director 

Camille Winston, Deputy Director 

Molly Masich, Director of APA Services 

Ruby Creech, Publications Coordinator 

Jean Shirley, Editorial Assistant 

Linda Dupree, Editorial Assistant 



IN THIS ISSUE 

I. IN ADDITION 

Health and Human Services 

Public Notice Draft 1999 State Medical 

Facilities Plan 171-172 

Voting Rights Letters 1 73 - 1 74 

II. RULE-MAKING PROCEEDINGS 
Administration 

Indian Affairs, State Commission of 1 75 

Environment and Natural Resources 

Coastal Management 1 76 - 1 77 

Health and Human Services 

Medical Assistance 175-176 

Labor 

Occupational Safety and Health 1 76 

IH. PROPOSED RULES 

Environment and Natural Resources 

Environmental Health 235 - 244 

Water Pollution Control System Operator 

Certification Commission 204 - 234 

Health and Human Services 

Facility Services 178-198 

Health Services 234 - 235 & 244 - 246 

Secretary of Health and 
Human Services 198 - 200 & 203 - 204 

Social Services Commission 200 - 203 

Licensing Boards 

Cosmetic Art Examiners 246 

Pharmacy, Board of 246 - 247 

IV. TEMPORARY RULES 
Health and Human Services 

Medical Assistance 248 

V. APPROVED RULES 249-251 

Agriculture 

Structural Pest Control Division 
Environment and Natural Resources 

Wildlife Resources Commission 
Health and Human Services 

Social Services 
Licensing Boards 

Substance Abuse Professionals, Certification Board 

VI. RULES REVIEW COMMISSION 252-254 

VII. CONTESTED CASE DECISIONS 

Index to ALJ Decisions 255 - 256 

Text of Selected Decisions 
97 OSP 1586 257-259 

VIH. CUMULATIVE INDEX 1-47 



North Carolina Register is published semi-monthly for $195 per year by the Office of Administrative Hearings. 424 North Blount Street, Raleigh. NC 
27601 , Application to mail at Periodicals Rates is pending at Raleigh, NC POSTMASTER: Send Address changes to the North Carolina Register. 
PO Drawer 27447. Raleigh. NC 2761 1-7447. 



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IN ADDITION 



This Section contains public notices that are required to be published in the Register or have been approved by the Codifier of 
Rules for publication. 



PUBLIC NOTICE 

Citizens are invited to attend public hearings on the Draft 1999 State Medical Facilities Plan to be conducted by the North Carolina 
State Health Coordinating Council (SHCC) at the following times and locations: 



Greenville 


July 13, 1998 
{Monday) 


1:30 


■2:30 p.m. 


The Willis Building 
East Carolina University 
300 East First Street 
Greenville, NC 27858-4356 


Charlotte 


July 14, 1998 
(Tuesday) 


1:30 


-2:30 p.m. 


Mercy Hospital 
Auditorium 
2001 Vail Avenue 
Charlotte, NC 


Greensboro 


July 15, 1998 
(Wednesday) 


1:30 


-2:30 p.m. 


Council of Governments 

Koger Office Ctr. (near Howard Johnson 's) 

2216 W. Meadowview Road 
Suite 201, Wilmington Building 

(2nd Floor Conference Room) 
Greensboro, NC 27407-3480 


Asheville 


July 16, 1998 

(Thursday) 


1:30 


-2:30 p.m. 


MAHEC 

501 Biltmore Avenue 

Second Floor 

Asheville, NC 28801-4686 


Wilmington 


July 17, 1998 
(Friday) 


1:30 


-2:30 p.m. 


Coastal AHEC 

New Hanover Regional Med. Ctr. 
Auditorium ~ Ground Floor 
2131 S. 17th Street 
Wilmington, NC 


Raleigh 


July 21, 1998 
(Tuesday) 


1:30 


-2:30 p.m. 


Public Health Center 

Auditorium 

10 Sunnybrook Road 

(Comer of New Bern Ave. & Sunnybrook Rd.) 
Raleigh, NC 



All persons commenting on the Draft Plan at the public hearings are asked to supply WRITTEN COPIES of their remarks . 

Persons with disabilities who need assistance to participate in the public hearing are requested to notify the Medical Facilities Planning 
Section in advance so that reasonable accommodations can be arranged. 

The State Medical Facilities Plan projects need for acute care hospital beds, rehabilitation facilities and beds, ambulatory surgery 
facilities and operating rooms, technology services and equipment, nursing care beds, home health agencies, kidney dialysis stations, 
hospice home care programs and inpatient beds, psychiatric hospitals, substance abuse treatment facilities, and intermediate care 
facilities for the mentally retarded. NOTE : After the need determinations and policies are adopted by the SHCC and approved 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



171 



IN ADDITION 



by the Governor, they will be incorporated in Administrative Procedure Act Rules for the 1999 State Medical Facilities Plan . 

Persons wishing to review or purchase the Draft 1999 State Medical FaciHties Plan or who want information about the Plan or the 
series of public hearings nia> call 919-733-4130. or write to: Medical Facilities Planning Section. Division of Facilitv' Services. P. 
O. Box 29530. Raleigh. NC 27626-0530. Inquiries ma\ be made to this same address about comments or petitions received regarding 
the Draft Plan. Copies of the Draft Plan will also be made available to all Area Health Education Centers and to all Lead Regional 
Organizations (Councils of Government) in the State. ALL WRITTEN COMMENTS AND PETITIONS ON THE DRAFT 1999 
STATE MEDICAL FACILITIES PLAN MUST BE RECEIVED BY JULY 2L 1998 . 



172 NORTH CAROLINA REGISTER July 15, 1998 13:2 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 



EJ:DHH:KIF:jng Voting Section 

DJ 166-012-3 PO. Box 66128 

98- 1 424 Washington. D. C 20035-6128 

98-1761 

Junes, 1998 

David A. Holec, Esq. 

City Attorney 

P.O. Box 7207 

Greenville, North Carolina 27835-7207 

Dear Mr. Holec: 

This refers to ten annexations (Ordinance Nos. 4, 5, 6, 18, 1 9, 20, 30, 3 1 , 32, and 33(1 998)) and their designation to districts 
of the City of Greenville in Pitt County. North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights 
Act, 42 U.S.C. 1973c. We received your submissions on April 7 and May 1 1, 1998. 

The Attorney General does not interpose any objection to the specified changes. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the changes. 
In addition, as authorized by Section 5, we reserve the right to reexamine these submissions if additional information that would 
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for 
the Administration of Section 5 (28 C.F.R. 51.41 and 51.43). 



Sincerely, 



Elizabeth Johnson 
Chief, Voting Section 



13:2 NORTH CAROLINA REGISTER July 15, 1998 173 



IN ADDITION 



U.S. Department of Justice 
Civil Rights Division 
Washington, D.C. 20035-6128 



Office of the Attorney General 



June 8, 1998 



Mr. Gary O. Bartlett 

Executive Secretary-Director 

North Carolina State Board of Elections 

P.O. Box 2169 

Raleigh, North Carolina 27602 

Dear Mr. Bartlett: 

This refers to NC Sess. Law 1998-2 (House Bill 1394), which provides for the 1998 congressional redistricting plan for the 
State of North Carolina, submitted to the Attorney General pursuant to Section 5 of the Voting Rights Act, 42 U.S.C. 1973c. We 
received your submission on May 22, 1998. supplemental information was received on May 26 and 29, 1998. 

The Attorney General does not interpose any objection to the specified change. However, we note that Section 5 expressly 
provides that the failure of the Attorney General to object does not bar subsequent litigation to enjoin the enforcement of the change. 
In addition, as authorized by Section 5, we reserve the right to reexamine this submission if additional information that would 
otherwise require an objection comes to our attention during the remainder of the sixty-day review period. See the Procedures for 
the Administration of Section 5 (28 C.F.R. 5 1 .4 1 and 5 1 .43). 

Since the Section 5 status of the 1998 congressional redistricting plan is before the court in Cromartie v. Hunt , CA No. 4: 
96-CV-104-BO(3), we are providing a copy of this letter to the court and counsel of record in that case. 



Sincerely, 



William R. Yeomans 

Acting Assistant Attorney General 

Civil Rights Division 



cc: The Honorable Sam J. Ervin. Ill 

The Honorable Terrence W. Bo>le 
The Honorable Richard L. Voorhees 

Counsel of Record 



174 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



I 



RULE-MAKING PROCEEDINGS 



A Notice of Rule-making Proceedings is a statement of subject matter of the agency's proposed rule making. The agency 
must publish a notice of the subject matter for public comment at least 60 days prior to publishing the proposed text of a 
rule. Publication of a temporary rule serves as a Notice of Rule-making Proceedings and can be found in the Register under 
the section heading of Temporary Rules. A Rule-making Agenda published by an agency serves as Rule-making Proceedings 
andean be found in the Register under the section heading of Rule-making Agendas. Statutory reference: G.S. 150B-21.2. 



TITLE 1 - DEPARTMENT OF ADMINISTRATION 
CHAPTER 15 - COMMISSION OF INDIAN AFFAIRS 

A Totice of Rule-making Proceedings is hereby given by the 

J. V North Carolina State Commission of Indian Affairs in 
accordance with G.S. I50B-2L2. The agency shall subsequently 
publish in the Register the text of the rule(s) it proposes to adopt 
as a result of this notice of rule-making proceedings and any 
comments received on this notice. 

Citation to Existing Rules AfTected by this Rule-Making: / 

NCAC 15 .0201 - .0214. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S 143B-406: 150B-16 

Statement of the Subject Matter: The Commission desires to 
amend the procedures used to recognize Indian groups in North 
Carolina. The membership of the Commission desires to delete 
a provision which provides for the recognition of Indian 
"organizations " in North Carolina. 

Reason for Proposed Action: In the United States. Indian 
tribes have had special relationships with state and federal 
governments. State recognition is the state government's 
acknowledgment of an interrelated Indian people's historic 
existence as a tribe, identified as a separate and distinct group, 
exercising social, political, or economic influence over its 
people. Tribal representatives hcn'e expressed the concern that 
official recognition of mere "organizations " threatens tribal 
status and sovereignty as they presently exist. 

Comment Procedures: .411 written comments should be made 
to Mr. Gregory- A. Richardson. Executive Director of the NC 
State Commission of Indian .Affairs, at the Commission Offices, 
217 West Jones Street, Raleigh. NC 27603-1336. Telephone 
(919) 733-5998. 



TV Totice of Rule-ntaliing Proceedings is hereby given by the 
J. V DHHS - Division of Medical Assistance in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Register the text of the rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 10 

NCAC 261 .0101: 26M .0305. Other rules may be proposed in 
the course of the rule-making process. 

Authority for the rule-making: G.S 108A-25(b); 108A-54; 
108A-55: SL. 1993, c. 321, s. 222(g): 42 C.F.R. 431: 42 C.F.R. 
456 

Statement ofthe Subject Matter: 10 NCAC 261 .0101 -This 

Rule specifies the policies and procedures to provide for 
attending physician requests for reconsideration and recipient 
requests for appeal of decisions changing a recipient's or a 
Medicaid applicant's level of care, denial or modification of 
prior approval requests or denial of other medical services. 10 
NCAC 26M.0305 - This Rule states the appeals procedures for 
enrollee and sub-contractors to follow in the Carolina 
Alternatives program. 

Reason for Proposed Action: Carolina Alternatives capitation 
fee includes administrative cost. These cost include hearing 
procedures. .Area Program's contract directly v.ith the Division 
of Mental Health. Developmental Disabilities, Substance Abuse 
Services: therefore, it would be inappropriate to hold the 
hearing at the Division of Medical Assistance. 

Comment Procedures: Written comments concerning these 
rule-making actions must be submitted to Portia W. Rochelle, 
Rule-making Coordinator. Division of Medical Assistance, 1985 
Umstead Drive, Raleigh. NC 27603. 



■k -k ir -k -k 



XXXXWW5CWWX 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 261 - APPEALS PROCEDURES 

SUBCHAPTER 26M - MANAGED CARE 
AND PREPAID PLANS 



CHAPTER 50 - MEDICAL ASSISTANCE 

SUBCHAPTER 50B - ELIGIBILITY 
DETERMINATION 

TV Totice of Rule-making Proceedings is hereby given by the 
J. V DHHS - Division of Medical Assistance in accordance with 
G.S. 150B-21.2. The agency shall subsequently publish in the 
Resister the text ofthe rule(s) it proposes to adopt as a result of 
this notice of rule-making proceedings and any comments 
received on this notice. 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



175 



RULE-MAKING PROCEEDINGS 



Citation to Existing Rules Affected by this Rule-Making: 10 

SCAC SOB .0302. .0313. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 108A-25(bl: 108.4-54: 
108A-61: 42 C.F.R. 435.135: 42 C.F.R. 435.402: 42 C.F.R. 
435.'31: 42 C.F.R. 4 3 5. '32: 42 C.F.R. 435.^33: 42 C.F.R. 
435.812: 42 C.F.R. 435.831: 42 C.F.R. 435.832: 42 C.F.R. 
435.100': 45 C.F.R. 233.20: 8 U.S.C. 1161: 8 U.S.C. 1255a: 42 
U.S.C. 1383c(h): 42 U.S.C. 1383cldj: 42 U.S.C. 1396bfv): P.L 
99-272; Section 12202: Alexander v. Flaherty Consent Order 
Filed Februaiy 14. 1992 

Statement of the Subject Matter: 10 NCAC SOB .0302 - This 
Rule defines aliens M'ho are eligible far Medicaid. 10 SCAC 
SOB .0313 - This Rule authorizes a S50.00 child support 
deduction from countable unearned income. 

Reason for Proposed Action: 10 SCAC SOB. 0302 - P.L. 104- 
93 defines "qualified" aliens who are eligible for Medicaid. 
Former categories of eligible aliens, such as PRUCOL aliens, 
are now ineligible for full Medicaid. This change will identif- 
"Qualified" aliens who are eligible for full Medicaid based on 
federal la^v. 10 NCAC SOB .0313 - To comply with CFR 
435.601 fbj which requires the financial methodologies for 
determining financial eligibility for family and children's 
Medicaid cases be based on the state 's Title 11 '-A policy. This 
change will exclude first S50.00 in child support received each 
month for each child in the budget unit. 

Comment Procedures: Written comments concerning these 
rule-making actions must be submitted to Portia W. Rochelle. 
Rule-making Coordinator. Division of Medical .Assistance. 1985 
Umstead Drive. Raleigh. SC 2'603. 



TITLE 13 - DEPARTMENT OF LABOR 

CHAPTER 7 - OFFICE OF OCCUPATIONAL SAFETY 
AND HEALTH 

'KTotice of Rule-making Proceedings is hereby given by the 
1 V Department of Labor. Division of Occupational Safety and 
Health in accordance with G.S. 150B-21.2. The agency shall 
subsequently publish in the Register the text of the rule(s) it 
proposes to adopt as a result of this notice of rule-making 
proceedings and any comments received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

13 \C.4C O'F. Standards. Other rules may be proposed in the 
course of the rule-making process. 

Authority for the rule-making: G.S. 95-4: 95-131 

Statement of the Subject Matter: The AC. Division of 
Occupational Scifety and Health is considering the development 
of rules to protect workers from developing occupationally 



derived cumulative trauma disorders. It is the goal of the 
Division to develop rules that will be protective of all workers, 
put employers on notice as to what is expected of them, and 
provide employers with the flexibility to deal with varying 
workplace conditions and rapid technology changes. The 
Division is seeking comments regarding the development and 
implementation of the rules, including, but not limited to. the 
scope and form the rules should take, information regarding the 
development and implementation of effective ergonomics 
programs, and information regarding implementation time 
frames. 

Reason for Proposed Action: To protect workers from 
developing occupationally derived cumulative trauma disorders. 

Comment Procedures: The purpose of this announcement is to 
encourage all interested and potentially affected persons or 
parties to make their vie^vs known to the Division of 
Occupational Health and Safety (OSH) whether in fa\-or of or 
opposed to any and all provisions of the proposal being noticed. 
In addition to tire acceptance of written comments, informational 
hearings will be held at five locations across the state to solicit 
comments and recommendations. There will be an afternoon 
(2pm-4pm) and an e\-ening (6pm-8pm) session at each location. 
The dates and locations are .August 1' at Forsyth Technical 
CommuniTy College. Ardmore Hall .Auditorium. 2100 Silas 
Creek Parkway. Winston-Salem. SC 2'103: August 18 at 
.Asheville-Buncombe Technical Community College, 340 
Victoria Road. .Asheville. SC 28801: August 20 at Johnson C 
Smith University. Biddle Auditorium. 100 Beatties Ford Road. 
Charlotte. NC 28216 (park in lot marked GYL): August 25 at 
Fort Fisher Aquarium. Auditorium. 2201 Fort Fisher Blvd.. S. 
Kure Beach. A'C 28449 and August 2" at the .Archdale Building, 
Hearing Room ^FHR. 512 \. Salisbury Street. Raleigh. NC 
28604. Depending on the size oftlie group attending a hearing, 
public comments may be limited. Speakers will be heard in the 
order in which they are registered to speak. Written comments, 
data, or other information relevant to this proposal must be 
submitted within 60 days— September 14, 1998. Written 
comments may be submitted to .Angela S. Waldorf Division of 
Occupational Safety and Health, 319 Chapanoke Road, Suite 
105, Raleigh. A'C 2 '603-3432. fax number (919l 662-4582. 
Requests for additional information regarding the hearings or 
to pre-register to speak at a hearing should be directed to Peggy- 
D. Morris at Division of Occupational Safety and Health, 319 
Chapanoke Road Suite 105, Raleigh. NC 2' 603-3432, 
telephone number (919) 662-458! or 1-800-LABORSC. 



TITLE ISA - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 7 - COASTAL MANAGEMENT 

A Totice of Rule-making Proceedings is hereby given by the 
1 V E.\R-Coastal Resources Commission in accordance with 
G.S. 1 50B-21.2. The agency shall subsequently publish in the 
Register the text of the ruletsi it proposes to adopt as a result of 



176 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



RULE-MAKING PROCEEDINGS 



this notice of rule-making proceedings and any comments 
received on this notice. 

Citation to Existing Rules Affected by this Rule-Making: 

15A NCAC 70.0105 and. 0202. Other rules may be proposed 
in the course of the rule-making process. 

Authority for the rule-making: G.S. 1 13-3; 113-8; 143B-10 

Statement of the Subject Matter: Adding new reserve 
components Bald Head Woods and Kitty Hawk Woods and 
recognizing local hunting laws and ordinances. 

Reason for Proposed Action: The proposed rule will include 
new reserve components Bald Head Woods and Kitty Hawk 
Woods as part of the North Coastal Reserve and will include 
recognition of local hunting laws in addition to state hunting 
laws. 

Comment Procedures: Contact John Taggart, 7205 
Wrightsville Avenue. Wilmington, NC 28403. (910) 256-3721 
ext. 243. 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



177 



PROPOSED RULES 



This Section contains the text of proposed rules. At least 60 days prior to the publication of text, the agency published a 
\otice of Rule-making Proceedings. The agency must accept comments on the proposed rule for at least 30 days from the 
publication date, or until the public hearing, or a later date if specified in the notice by the agency. The required comment 
period is 60 days for a rule that has a substantial economic impact of at least five million dollars (55,000,000). Statutory 
reference: G.S. 1508-21.2. 



TITLE 10 - DEPARTMENT OF HEALTH AND HUMAN SERVICES 

Notice is hereby given in accordance with G.S. I50B-21.2 that the Department of Health and Human Services. Division of Facility 
Services intends to adopt the rules cited as 10 NC.4C 3R .6101-. 6141 and amend the rule cited as 10 NCAC 3R .3051. Notice 
of Rule-making Proceedings was published in the Register on January 2. 1998. 

Proposed Effective Date: April 1. 1999 

A Public Hearing will be conducted at 10:00 a.m. on September 14, 1998 at the Council Building, Room 201, 701 Barbour Drive, 

Raleigh. NC 2^603. 

Reason for Proposed Action: To adopt as permanent rules the temporary version of the rules for the 1998 State Medical Facilities 
Plan. 

Comment Procedures: .Anyone wishing to comment on these proposed rules should contact Jackie Sheppard, APA Coordinator, 
Division of Facility Sen-ices. "01 Barbour Drive. Raleigh. A'.C. 2''603. (919) '33-2342. 

Fiscal Note: These Rules. 10 .\C.4C 3R .610'. .6112. .6120-. 6124 and .6129. do affect the expenditures or revenues of local and 
State funds. These Rules do ha\-e a substantial economic impact of at least five million dollars ($5,000,000) in a 12-month period. 

Fiscal Note: These Rules. 10 \C.4C 3R .3051. .6101-.6106. .6108-.6111. .6113-.6119. .6125-.6128. .61 30-. 6141. do not affect the 
expenditures or revenues of local or State funds. These Rules do not ha\'e a substantial economic impact of at least five million 
dollars (S5. 000.000) in a 12-month period 

CHAPTERS -FACILITY SERVICES 

SUBCHAPTER 3R - CERTIFICATE OF NEED REGULATIONS 

SECTION .3000 - PLANNING POLICIES AND NEED DETERMINATIONS 

.3051 APPLICABILITY OF RULES RELATED TO THE 1997 STATE MEDICAL FACILITIES PLAN 

Rules .3052 through .3054 and .3056 through .3088 of this Section apply to certificate of need applications for which the scheduled 
re\ie\s period b e gin s on or aft e r Januar\ 1 . 1 0Q7. began during calendar \ ear 1 997. In addition. Rule .3055 of this Section will be 
used to implement procedures described u ithin it aft e r Januan. 1. 1997 during calendar \ear 1997. 

.Authority G.S 131E-r6(25i: 131E-1"(1): 131E-183(b). 

SECTION .6100 - PLANNING POLICIES AND NEED DETERMINATIONS 

.6101 APPLICABILITY OF RULES RELATED TO THE 1998 STATE MEDICAL FACILITIES PLAN 

Rules .6101 through .6105 and .6107 through .6141 ofthis Section appK to certificate of need applications for uhich the scheduled 



re\ie\s period begins during calendar \ear 1998. In addition. Rule .6106 of this Section will be used to implement procedures 
described within it during calendar \ear 1998. 

.Authority- GS 131E-r6(25i: BIE-T'd): 131E-1 83(b). 

.6102 CERTIFICATE OF NEED REVIEW CATEGORIES 

The agencN' has established 10 categories of facilities and services for certificate of need re\iew and will determine the appropriate 



review categon or categories for all applications submitted pursuant to 10 NCAC 3R .0304. For proposals which include more than 



one categorN. the agenc\ ma\ require the applicant to submit separate applications, if it js not practical to submit separate 



applications, the agenc\ will determine in which category the application will be reviewed. The review of an application for a 



178 NORTH CAROLINA REGISTER July 15, 1998 13:2 



PROPOSED RULES 



certificate of need will commence in the next review schedule after the application has been determined to be complete. The 10 
categories of facilities and services are: 

(1) Category A. Proposals submitted by acute care hospitals, except those proposals included in Categories B through H and 
Category J, including but not limited to the following types of projects: renovation, construction, equipment, and acute 
care services. 

(2) Category B. Proposals for nursing care beds; new continuing care facilities applying for exemption under 10 NCAC 3R 
.6134; and relocations of nursing care beds under 10 NCAC 3R .6136. 

(3) Category C. Proposals for new psychiatric facilities; psychiatric beds in existing health care facilities; new intermediate 
care facilities for the mentally retarded (ICF/MR) and ICF/MR beds in existing health care facilities; new substance abuse 
and chemical dependency treatment facilities; substance abuse and chemical dependency treatment beds in existing health 
care facilities. 

(4) Category D. Proposals for new dialysis stations in response to the "county need" or "facility need" methodologies; and 
relocations of existing dialysis stations to another county. 

(5) Category E. Proposals for new or expanded inpatient rehabilitation facilities and inpatient rehabilitation beds in other 
health care facilities; and new or expanded ambulatory surgical facilities except those proposals included in Category H. 

(6) Category F. Proposals for new home health agencies or offices, new hospices, new hospice inpatient facility beds, and new 
hospice residential care facility beds. 

(7) Category G. Proposals for conversion of hospital beds to nursing care under 10 NCAC 3R .6133. 

(8) Category H. Proposals for bone marrow transplantation services, bum intensive care services, neonatal intensive care 
services, open heart surgery services, solid organ transplantation services, air ambulance equipment, cardiac angioplasty 
equipment, cardiac catheterization equipment, heart-lung bypass machines, gamma knives, lithotriptors. magnetic resonance 
imaging scanners, positron emission tomography scanners, major medical equipment as defined in G.S. 13 IE- 176 (14f). 
diagnostic centers as defined in G.S. 13 IE- 176 (7a). and oncology treatment centers as defined in G.S. 13 IE- 176 (18a). 

(9) Category I. Proposals involving cost overruns; expansions of existing continuing care facilities which are licensed by the 
Department of Insurance at the date the application is filed and are applying under exemptions fi-om need determinations 
in 10 NCAC 3 R .6121; relocations within the same county of existing health service facilities, beds or dialysis stations 
which do not involve an increase in the number of health service facility beds or stations; reallocation of beds or services; 
Category A proposals submitted by Academic Medical Center Teaching Hospitals designated prior to January 1. 1990; 
proposals submitted pursuant to 10 NCAC 3R .6130(c) by Academic Medical Center Teaching Hospitals designated prior 
to January 1. 1990; and any other proposal not included in Categories A through H and Category J. 

(10) Category J. Proposals for demonstration projects. 

Authority G.S. 13IE-176(25): niE-n-^d); 131E-183(b). 

.6103 CERTIFICATE OF NEED REVIEW SCHEDULE 

The agency has established the following review schedules for certificate of need applications. 
(1) Acute Care Beds (in accordance with the need determination in 10 NCAC 3R .6107) 



CON Beginning 
County Review Date 



Dare July 1. 1998 



(2) Fixed Cardiac Catheterization Equipment (in accordance with need determinations in 10 NCAC 3R .61 12) 



Hospital 
Service System 


CON Beginning 
Review Date 


Moses H. Cone Memorial 

High Point Regional 

Cape Fear Valley Medical Center 


April 1. 1998 
April 1, 1998 
March 1, 1998 



(3) Radiation Oncology Treatment Centers (in accordance with the need determination in 10 NCAC 3R .6120) 
I Radiation Oncology Treatment CON Beginning | 

13:2 NORTH CAROLINA REGISTER July 15, 1998 179 



PROPOSED RULES 



Center Service Area 



Review Date 



9 (Cabarrus. Stanly) 



October 1. 1998 



(4) Nursing Care Beds (in accordance with need determinations in 10 NCAC 3R .6121' 





CON Beginning 


Counts 


Review Date 


Caswell 


April 1, 1998 


Cabarrus 


August 1. 1998 


Rowan 


April 1, 1998 


Lee 


March 1. 1998 


Cumberland 


March 1, 1998 


Martin 


September 1, 1998 



(5) Home Health Agency Offices (in accordance with the need determination in 10 NCAC 3 R .6123) 



Counties 


CON Beginning 
Review Date 


Cumberland, Hoke. 
Robeson or Scotland 


May 1. 1998 



(6) Detox-Onl\ Beds (in accordance with need determinations in 10 NCAC 3R .6128) 



Mental Health Planning Areas 


CON Beginning 
Review Date 


I (Cherokee. Clay. Graham. Haywood. Jackson, Macon. Swain) 

4 (Henderson. Transvlvania) 

5 (Alexander, Burke. Caldwell. McDowell) 

6 (Rutherford. Polk) 

I I (Davie. Iredell. Rowan) 
13 (SurrN. Yadkin) 

15 (Rockingham) 

17 (Alamance. Caswell) 

18 (Orange. Person. Chatham) 

20 (Vance. Granville. Franklin. Warren) 

21 (Davidson) 

23 (Bladen. Columbus. Robeson. Scotland) 

26 (Johnston) 

27 (Wake) 

31 (Wayne) 

32 (Wilson. Greene) 

33 (Edgecombe. Nash) 

34 (Halifax) 

35 (Carteret. Craven. Jones. Pamlico) 

36 (Lenoir) 

38 (Bertie. Gates. Hertford. Northampton) 

39 (Beaufort. H\de. Martin. Tvrrell. Washington) 

40 (Camden, Chowan. Currituck. Dare. Pasquotank. Perquimans) 

41 (Duplin, Sampson) 


June 1 
June 1 


1998 
1998 


June 1 


1998 


June 1 


1998 


June 1 


1998 
1998 


June 1 


June 1 


1998 


June 1 


1998 


June 1 


1998 


June 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


May 1 


1998 


MaN 1 


1998 






180 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



(7) Intermediate Care Facility Beds for Mentally Retarded (in accordance with need determinations in 10 NCAC 3R .6129) 





CON Beginning 


Mental Health Planning Areas 


Review Date 


8 (Gaston, Lincoln) 


June 1, 1998 


10 (Mecklenburg) 


June 1, 1998 


14 (Forsyth, Stokes) 


June 1. 1998 


21 (Davidson) 


June 1. 1998 


24 (Cumberland) 


May 1, 1998 


37 (Pitt) 


May 1, 1998 



(8) Applications for certificates of need will be reviewed pursuant to the following review schedule, unless another schedule 
has been specified in Items ( 1 ) through (7) of this Rule. 



CON Beginning 






HSA 


HSA 


Review Date 






LILIil 


IV, V, VI 


January 1 









__ 


Februarv 1 






A,E,a,i 


G 


March 1 






" 


A,B,E,LH 


April 1 






B^LiLl 


~ 


May 1 






c 


C.Li 


June 1 






A,C,D,i 


C.D 


July 1 






" 


A,I 


August 1 






B,E,I 


" 


September 1 






J 


B.E,iiLJ 


October 1 






A^LtLi 


" 


November 1 






-_z 


A.LI 


December 1 






c,a,i 


c.ai 


Authority G.S. 131 £-176(25): 131E-1 


'7(1): 


131E-183(b). 




.6104 MULTI-COUNTY GROUPINGS 






(a) Health Service Areas. The agency has 


assigned the counties of the state to the following health service areas for the purpose 



of scheduling applications for certificates of need: 









HEALTH SERVICE AREAS 


(HSA) 






f 


II 


III 




IV 


V 


VI 




County 


County 

Alamance 

Caswell 

Davidson 

Davie 

Forsvth 

Guilford 

Randolph 

Rockingham 

Stokes 


County 

Cabarrus 

Gaston 

Iredell 

Lincoln 

Mecklenburg 

Rowan 

Stanly 

Union 


County 

Chatham 

Durham 

Franklin 

Granville 

Johnston 

Lee 

Orange 

Person 

Vance 


County 

Anson 
Bladen 
Brunswick 
Columbus 
Cumberland 
Harnett 
Hoke 

Montgomery- 
Moore 


County- 
Beaufort 
Bertie 
Camden 
Carteret 
Chowan 
Craven 
Currituck 
Dare 
Duplin 




Alexander 


Alleghanv 


Ashe 

Avery 

Buncombe 


Burke 


Caldwell 


Catawba 


Cherokee 






13:2 


NORTH CAROLINA REGISTER July 15, 1998 




181 



PROPOSED RULES 



tlav 
Cleveland 


Surry 
Yadkin 


Wake 
Warren 


New Hanover 

Pender 

Richmond 

Robeson 

Sampson 

Scotland 


Edgecombe 

Gates 

Greene 

Halifax 

Hertford 

Hyde 

Jones 

Lenoir 

Martin 

Nash 

Northampton 

Onslow 

Pamlico 

Pasquotank 

Perquimans 

Pitt 

Tyrrell 

Washington 

Wayne 

Wilson 


Graham 


Haywood 


Henderson 


Jackson 


McDowell 


Macon 


Madison 


Mitchell 


Polk 
Rutherford 


Swain 


Transylvania 


Watauga 


Wilkes 


Yancey 





(b) Mental Health Planning Areas. The agency has assigned the counties of the state to the following Mental Health Planning 
Areas for purposes of the State Medical Facilities Plan: 



MENTAL HEALTH PLANNING AREAS 



Area Number Constituent Counties 



1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

H 

14 

15 

16 

12 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 



Cherokee. Cla\. Graham. Hay-wood. Jackson. Macon. Swain 

Buncombe. Madison. Mitchell. Yancey 

Alleghany. Ashe. Avery. Watauga. Wilkes 

Henderson. Transylvania 

Alexander. Burke. Caldwell. McDowell 

Rutherford. Polk 

Cleveland 

Gaston. Lincoln 

Catawba 

Mecklenburg 

Davie, Iredell. Rowan 

Cabarrus. Stanly. Union 

Surr>. Yadkin 

Forsyth. Stokes 

Rockingham 

Guilford 

Alamance. Caswell 

Orange. Person. Chatham 

Durham 

Vance. Granville. Franklin. Warren 

Davidson 

Anson. Hoke. Montgomery. Moore. Richmond 

Bladen. Columbus. Robeson. Scotland 

Cumberland 

Lee, Harnett 

Johnston 

Wake 

Randolph 



182 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



29 


Brunswick, New Hanover. Pender 


30 


Onslow 


31 


Wavne 


32 


Wilson, Greene 


33 


Edgecombe, Nash 


34 


Halifax 


35 


Carteret. Craven. Jones, Pamlico 


36 


Lenoir 


37 


Pitt 


38 


Bertie, Gates, Hertford, Northampton 


39 


Beaufort, Hvde. Martin. Tyrrell, Washington 


40 


Camden, Chowan, Currituck, Dare, Pasquotank, Perquimans 


4i 


Duplin, Sampson 



(c) Mental Health Planning Regions. The agency has assigned the counties of the state to the following Mental Health 
Planning Regions for purposes of the State Medical Facilities Plan: 

MENTAL HEALTH PLANNING REGIONS (Area Number and Constituent Counties) 



Western (W) 



Cherokee, Clay, Graham, Haywood, Jackson, Macon, Swain 

Buncombe, Madison, Mitchell, Yancey 

Alleghany, Ashe, Avery, Watauga, Wilkes 

Henderson, Transylvania 

Alexander, Burke, Caldwell, McDowell 

Rutherford. Polk 

Cleveland 



8 Gaston, Lincoln 

9 Catawba 

10 Mecklenburg 

ii Davie, Iredell, Rowan 

12 Cabarrus. Stanly. Union 



North Central (NO 



11 
H 
15 
16 
il 
18 

19 

20 Vance, Granville. Franklin. Warren 



Surry. Yadkin 

Forsyth. Stokes 

Rockingham 

Guilford 

Alamance. Caswell 

Orange. Person. Chatham 

Durham 



South Central (SO 



21 Davidson 

22 Anson. Hoke. Montgomery. Moore. Richmond 

23 Bladen. Columbus. Robeson. Scotland 

24 Cumberland 

25 Lee. Harnett 

26 Johnston 

27 Wake 

28 Randolph 



Eastern (E) 



29 Brunswick. New Hanover. Pender 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



183 



PROPOSED RULES 



30 Onslow 

31 Wayne 

32 Wilson, Greene 

33 Edgecombe, Nash 

34 Halifax 

35 Carteret, Craven. Jones. Pamlico 

36 Lenoir 

37 Pitt 

38 Bertie, Gates, Hertford, Northampton 

39 Beaufort, Hyde. Martin. Tyrrell, Washington 

40 Camden, Chowan, Currituck, Dare, Pasquotank. Perquimans 

41 Duplin, Sampson 



(dj Radiation Oncology Treatment Center Planning Areas. The agency has assigned the counties of the state to the following 
Radiation Oncology Treatment Center Planning Areas for purposes of the State Medical Facilities Plan: 

RADIATION ONCOLOGY TREATMENT CENTER PLANNING AREAS 



Area Number Constituent Counties 



1 Cherokee, Clay, Graham. Jackson, Macon, Swain 

2 Buncombe. Haywood. Madison. McDowell, Mitchell, Yancey 

3 Alleghany. Ashe, Avery, Watauga 

4 Henderson, Polk, Transylvania 

5 Alexander. Burke, Caldwell, Catawba 

6 Rutherford, Cleveland, Gaston. Lincoln 

7 Mecklenburg, Anson, Union 

8 Iredell, Rowan 

9 Cabarrus, Stanly 

10 Forsyth, Davidson. Davie. Stokes. Surry. Wilkes. Yadkin 

11 Guilford. Randolph. Rockingham 

12 Alamance, Chatham, Orange 

13 Durham, Caswell, Granville, Person, Vance, Warren 

14 Moore, Hoke, Lee, Montgomery. Richmond 

15 Cumberland. Bladen. Sampson 

16 Robeson. Scotland 

17 Wake. Franklin, Harnett, Johnston 

18 New Hanover, Brunswick, Columbus, Pender 

19 Wayne 

20 Nash, Halifax, Wilson 

21 Craven, Carteret, Onslow, Jones, Pamlico 

22 Lenoir, Duplin 

23 Pitt, Beaufort, Bertie, Edgecombe, Greene, Hertford, Hyde, Martin, Northampton, Washington 

24 Pasquotank, Camden, Chowan, Currituck, Dare, Gates, Perquimans, Tyrrell 



(e) Ambulatory Surgical Facility Planning Areas. The agency has assigned the counties of the state to the following Ambulatory 
Surgical Facility Planning Areas for purposes of the State Medical Facilities Plan: 

AMBULATORY SURGICAL FACILITY PLANNING AREAS 



Area Constituent Counties 



1 Alamance 

2 Alexander, Iredell 

3 Alleghany, Surrv, Wilkes 



I 



184 NORTH CAROLINA REGISTER July 15. 1998 13:2 



i 



PROPOSED RULES 



4 Anson. Cleveland, Gaston. Mecklenburg. Union 

5 Ashe. Avery. Watauga 

6 Beaufort. Hyde 

7 Bertie. Gates. Hertford 

8 Bladen. Cumberland. Robeson. Sampson 

9 Brunswick. Columbus. Duplin. New Hanover. Pender 

10 Buncombe. Haywood. Madison. Mitchell. Yancey 

11 Burke. McDowell. Rutherford 

12 Cabarrus. Rowan. Stanly 

13 Caldwell. Catawba. Lincoln 

14 Camden. Currituck. Dare. Pasquotank. Perquimans 

15 Carteret. Craven. Jones. Onslow. Pamlico 

16 Caswell. Chatham. Orange 

17 Cherokee. Clay. Graham. Jackson. Macon. Swain 

18 Chowan. Tyrrell. Washington 

19 Davidson. Davie. Forsyth. Stokes. Yadkin 

20 Durham. Granville. Person 

21 Edgecombe. Halifax. Nash. Northampton 

22 Franklin. Harnett. Johnston. Wake 

23 Greene. Lenoir. Martin. Pitt 

24 Guilford. Randolph. Rockingham 

25 Henderson. Polk. Transylvania 

26 Hoke. Lee. Montgomery. Moore. Richmond. Scotland 

27 Vance. Warren 

28 Wayne 

29 Wilson 



Authority G.S. 131E-176(25): I31E-I77(I): 13IE-183(I). 

.6105 SERVICE AREAS AND PLANNING AREAS 

(a) An acute care bed's service area is the acute care bed planning area in which the bed is located. The acute care bed planning 
areas are the hospital service systems which are defined as follows: 

(1) a group of hospitals located in the same city, or within 1 miles of each other, or in the same county if one or more hospitals 
in the county are under common ownership; or 

(2) a single hospital that is not included in one of the groups of hospitals described in Subparagraph (a)( 1 ) of this Rule. 

(b) A rehabilitation bed's service area is the rehabilitation bed planning area in which the bed is located. The rehabilitation bed 
planning areas are the health service areas which are defined in 10 NCAC 3R .6104(a). 

(c) An ambulatory surgical facility's service area is the ambulatory surgical facility planning area in which the facility is located. 
The ambulatory surgical facility planning areas are the multi-county groupings as defined in 10 NCAC 3R .6104(e). 

(d) A radiation oncology treatment center's and linear accelerator's service area is the radiation oncology treatment center and 
linear accelerator planning area in which the facility is located. The radiation oncology treatment center and linear accelerator 
planning areas are the multi-county groupings as defined in 10 NCAC 3R .6104(d). 

(e) A nursing care bed's service area is the nursing care bed planning area in which the bed is located. Each of the 100 counties 
in the State is a separate nursing care bed planning area. 

(f) The service area for the demonstration project to establish a nursing care facility for deaf and hard of hearing is the 
demonstration project planning area. The demonstration project planning area consists of all 100 counties of the State. 

(g) A home health agency office's service area is the home health agency office planning area in which the office is located. Each 
of the 100 counties in the State is a separate home health agency office planning area, except that Cumberland. Hoke. Robeson and 
Scotland Counties constitute a single multicounty planning area. 

(h) A dialysis station's service area is the dialysis station planning area in which the dialysis station is located. Each of the 100 
coimties in the State is a separate dialysis station planning area. 

(il A hospice's service area is the hospice planning area in which the hospice is located. Each of the 100 counties in the State is 
a separate hospice planning area. 

(jj A hospice inpatient facility bed's service area is the hospice inpatient facility bed planning area in which the bed is located. 
Each of the 100 counties in the State is a separate hospice inpatient facility bed planning area. 



13:2 NORTH CAROLINA REGISTER July 15, 1998 185 



PROPOSED RULES 



(kj A psNchiatric bed's service area is the psychiatric bed planning area in which the bed is located. The psychiatric bed planning 
areas are the Mental Health Planning Regions which are defined in 10 NCAC 3R .6104(c). 

(1) With the exception of chemical dependency detoxification-onh beds, a chemical dependency' treatment bed's service area is 
the chemical dependency treatment bed planning area in which the bed is located. TTie chemical dependency treatment bed planning 
areas are the Mental Health Planning Regions yshich are defined in 10 NCAC 3R .6104(c). 

(m) A chemical dependency detoxification-onh bed's ser\ ice area is the chemical dependency detoxification-onK bed planning 
area in yvhich the bed is located. The chemical dependency detoxification-only bed planning areas are the Mental Health Planning 
Areas yvhich are defined in 10 NCAC 3R .6104(b). 

(n) An intermediate care bed for the mentally retarded's seryice area is the intermediate care bed for the mentally retarded planning 
area in \\hich the bed is located. The intermediate care bed for the mentally retarded planning areas are the Mental Health Planning 
Areas yvhich are defined in 10 NCAC 3R .6104(b). 

Auihorin-G.S. 131E-r6(25): 131E-l"(lj: 131E-183(lJ. 

.6106 REALLOCATIONS AND ADJUSTMENTS 

ta) REALLOCATIONS. 

(1) Reallocations shall be made only to the extent that need determinations in 10 NCAC 3R .6107 through .6129 indicate that 
need exists after the inyentories are reyised and the need determinations are recalculated. 

(2) Beds or sery ices yvhich are reallocated once in accordance yvith this Rule shall not be reallocated again. Rather, the Medical 
Facilities Planning Section shall make any necessary changes in the next annual State Medical Facilities Plan. 

(3) DiaK sis stations that are w ithdrayvn. relinquished, not applied for, decertified, denied, appealed, or pending the expiration 
of the 30 day appeal period shall not be reallocated. Instead, any necessary redetermination of need shall be made in the 
next scheduled publication of the Semiannual Dialvsis Report. 

(4) Appeals of Certificate of Need Decisions on Applications. Need determinations of beds or services for yvhich the CON 
Section decision has been appealed shall not be reallocated until the appeal is resolved. 

(A) Appeals Resolved Prior to August 17: If an appeal is resoK ed in the calendar y ear prior to August 1 7. the beds or 
services shall not be reallocated by the CON Section: rather the Medical Facilities Planning Section shall make the 
necessary changes in the next annual State Medical Facilities Plan, except for diahsis stations yshich shall be 
processed pursuant to Subparagraph (a)(3) of this Rule. 

(B) Appeals ResoKed on or After August 17: If the appeal is resoKed on or after August 17 in the calendar year, the 
beds or services, except for diahsis stations, shall be made available for a rev iew period to be determined by the 
CON Section, but beginning no earlier than 60 davs from the date that the appeal is resolved. Notice shall be mailed 
by the Certificate of Need Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 
45 days prior to the due date for receipt of ney\ applications. 

(5) W'ithdrayyals and Relinquishments. Except for diahsis stations, a need determination for which a certificate of need is 
issued, but is subsequently withdrawn or relinquished, is available for a rev levy period to be determined bv the Certificate 
of Need Section, but beginning no earlier than 60 days from: 

(A) the last date on yvhich an appeal of the notice of intent to withdraw the certificate could be filed if no appeal is filed. 

(B) the date on which an appeal of the yvithdray\al is finalh resolved against the holder, or 

(C) the date that the Certificate of Need Section receives from the holder of the certificate of need notice that the 
certificate has been voluntarily relinquished. 

Notice of the scheduled rev ievs period for the reallocated serv ices or beds shall be mailed b\ the Certificate of Need Section 
to all persons on the mailing list for the State Medical Facilities Plan, no less than 45 day s prior to the due date for submittal 
of the neyy applications. 

(6) Need Determinations for y\hich No Applications are Received. 

(A) Sery ices or Beds with Scheduled Rev ieyv in the Calendar Year on or Before September 1 : The Certificate of Need 
Section shall not reallocate the services or beds in this category for which no applications were received, because 
the Medical Facilities Planning Section will have sufficient time to make any necessary changes in the determinations 
of need for these serv ices or beds in the next annual State Medical Facilities Plan, except for diah sis stations. 

(B) Services or Beds ysith Scheduled RevieyN in the Calendar Year .After September 1: Except for diahsis stations, a 
need determination in this category for yy hich no application has been received h\ the last due date for submittal of 



applications shall be available to be applied for in the second Category I rev lew period in the next calendar year for 



the applicable HSA. Notice of the scheduled rev ievs period for the reallocated beds or services shall be mailed by 



the Certificate of Need Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 



45 days prior to the due date for submittal of new applications. 
£7} Need Determinations not .Awarded because Application Disapproved. 

(A) Disapproval in the Calendar Year prior to August 17: Need determinations or portions of such need for which 



applications were submined but disapproved by the Certificate of Need Section before August 17. shall not be 



186 NORTH CAROLINA REGISTER July 15, 1998 13:2 



PROPOSED RULES 



reallocated by the Certificate of Need Section. Instead the Medical Facilities Planning Section shall make the 
necessary changes in the next annual State Medical Facilities Plan if no appeal is filed, except for dialysis stations. 

(B) Disapproval in the Calendar Year on or After August 17: Need determinations or portions of such need for which 
applications were submitted but disapproved by the Certificate of Need Section on or after August 17. shall be 
reallocated by the Certificate of Need Section, except for dialysis stations. A need in this category shall be available 
for a review period to be determined by the Certificate of Need Section but beginning no earlier than 95 days fi"om 
the date the application was disapproved, if no appeal is filed. Notice of the scheduled review period for the 
reallocation shall be mailed by the Certificate of Need Section to all persons on the mailing list for the State Medical 
Facilities Plan, no less than 80 days prior to the due date for submittal of the new applications. 
(8) Reallocation of Decertified ICF/MR Beds. If an ICF/MR facility's Medicaid certification is relinquished or revoked, the 

ICF/MR beds in the facility shall be reallocated by the Department of Health and Human Services. Division of Facility 

Services. Medical Facilities Planning Section pursuant to the provisions of the following sub-parts. The reallocated beds 

shall only be used to convert five-bed ICF/MR facilities into six-bed facilities. 

(A) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are located equals 
or exceeds the number of reallocated beds, the beds shall be reallocated solely within the planning region after 
considering the recommendation of the Regional Team of Developmental Disabilities Services Directors. 

(B) If the number of five-bed ICF/MR facilities in the mental health planning region in which the beds are located is less 
than the number of reallocated beds, the Medical Facilities Planning Section shall reallocate the excess beds to other 
plaiming regions after considering the recommendation of the Developmental Disabilities Section in the Division 
of Mental Health. Developmental Disabilities, and Substance Abuse Services. The Medical Facilities Planning 
Section shall then allocate the beds among the planning areas within those planning regions after considering the 
recommendation of the appropriate Regional Teams of Developmental Disabilities Services Directors. 

(C) The Department of Health and Human Services. Division of Facility Services. Certificate of Need Section shall 
schedule reviews of applications for these beds pursuant to Subparagraph (a)(5) of this Rule. 

(b} CHANGES IN NEED DETERMINATIONS. 

(1) The need determinations in 10 NCAC 3R .6107 through .6129 shall be revised continuously throughout the calendar year 
to reflect all changes in the inventories of: 

(A) the health services listed at G.S. 131E-176(I6)f; 

(B) health service facilities; 

(C) health service facility beds: 

(D) dialysis stations: 

£E} the equipment listed at G.S. 1 3 1 E- 1 76( 1 6)f 1 : and 

(F) mobile medical equipment: 

as those changes are reported to the Medical Facilities Planning Section. However, need determinations in 10 NCAC 3R 

.6107 through .6129 shall not be reduced if the relevant inventory is adjusted upward 30 days or less prior to the first day 

of the applicable review period. 

(2) Inventories shall be updated to reflect: 

(A) decertification of home health agencies or offices, intermediate care facilities for the mentally retarded, and dialysis 
stations; 

(B) delicensure of health service facilities and health service facility beds: 

(C) demolition, destruction, or decommissioning of equipment as listed at G.S. 131E-176(I6)fI and s: 

(D) elimination or reduction of a health service as listed at G.S. 131E-176(16)f; 

(E) psychiatric beds licensed pursuant to G.S. 131E-184(c); 

(F) certificates of need awarded, relinquished, or withdrawn, subsequent to the preparation of the inventories in the State 
Medical Facilities Plan; and 

(G) corrections of errors in the inventory as reported to the Medical Facilities Planning Section. 

£3} Any person who is interested in applying for a new institutional health service for which a need determination is made in 
10 NCAC 3R .6107 through .6129 may obtain information about updated inventories and need determinations from the 
Medical Facilities Planning Section. 

(4) Need determinations resulting from changes in inventory shall be available for a review period to be determined by the 
Certificate of Need Section, but beginning no earlier than 60 days from the date of the action identified in Paragraph (b) 
of this Rule, except for dialysis stations which shall be determined by the Medical Facilities Planning Section and published 
in the next Semiannual Dialysis Report. Notice of the scheduled review period for the need determination shall be mailed 
by the Certificate of Need Section to all persons on the mailing list for the State Medical Facilities Plan, no less than 45 
days prior to the due date for submittal of the new applications. 



Authority G.S. 131E-176(25); 131E-177(1); 131E-I83(h). 



13:2 NORTH CAROLINA REGISTER July 15, 1998 187 



PROPOSED RULES 



.6107 ACUTE CARE BED NEED DETERMINATION (REVIEW CATEGORY A) 

It is determined that a need exists in Dare Counu for one acute care hospital of not more than 30 acute care beds. It is determined 
that no need exists in any other county for additional acute care beds. 

Authority G.S. 131E-r6<25i: 131E-1"(1): 131E-183fb). 

.6108 REHABILITATION BED NEED DETERMINATION (REVIEW CATEGORY E) 

It is determined that there is no need for additional rehabiHtation beds. 

Authority G.S. 131E-r6(25): 13!E-1"(1): 131E-183(b). 

.6109 AMBULATORY SURGICAL FACILITIES NEED DETERMINATION (REVIEW CATEGORY E) 

It is determined that there js no need for additional ambulatorN surgical facilities, except that a Rural Primar\ Care Hospital 
designated by the NC Office of Rural Health Services pursuant to Section 1820(f) of the Social Securits' Act may apph for a 
certificate of need to convert existing operating rooms for use as a licensed ambulator, surgical facility 

Authority G.S. 131E-l'6i:5l: I31E-1"(1): 131E-183lb). 

.6110 OPEN HEART SURGERY SERVICES NEED DETERMINATIONS (REVIEW CATEGORY H) 

It is determined that there is no need for additional open heart surgery services. 

Authority G.S 131E-l-6(25): !31E-r'fl): 131E-183(b). 

.61 1 1 HEART-LUNG BYPASS MACHINES NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for additional heart-lung bypass machines. 

Authority G.S !31E-1^6(25): 131E-ryi): 131E-183(b). 

.61 12 FIXED CARDIAC CATHETERIZATION EQUIPMENT AND FIXED CARDIAC ANGIOPLASTY 
EQUIPMENT NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that a need exists for one additional fixed unit of cardiac catheterization equipment or one additional fixed unit of 
cardiac angioplasty equipment in each of the hospital service systems served by Cape Fear Valley Medical Center. Moses H. Cone 
Memorial Hospital, and High Point Regional Hospital, and that these hospitals and any other person mav apply for a certificate of 
need to purchase the units, provided the units s\\\\ be located in the hospital service system for vshich the need is identified. This 
means that any new unit must be located within 10 miles of a hospital within the hospital service svstem. 

.Authority G.S 13 1 E-r6(25): UlE-T'd): 131E-lS3(b). 

.61 13 MOBILE CARDIAC CATHETERIZATION EQUIPMENT AND MOBILE CARDIAC 
ANGIOPLASTY EQUIPMENT NEED DETERMINATION (REVIEW CATEGORY H) 

There js no need for any additional mobile cardiac catheterization equipment or any additional mobile cardiac angioplasty' 
equipment. 



Authority G.S 131E-r6(25): 131 E-I^'dl: 131E-183(b). 

.6114 BURN INTENSIVE CARE SERVICES NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for additional bum intensive care services. 

.Authority G.S 1 31 E-r6l25): 131E-r'(l): 131E-183(bi. 

.61 15 POSITRON EMISSION TOMOGRAPHY SCANNERS NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that there is no need for additional positron emission tomography scanners for purposes other than research. 

Authorit}' G.S 131E-r6(25): 131E-1"(1/: !31E-183(bl. 

.6116 BONE MARROW TRANSPLANTATION SERVICES NEED DETERMINATION (REVIEW 
CATEGORY H) 



188 NORTH CAROLINA REGISTER July 15, 1998 13:2] 



^m 



PROPOSED RULES 



It is determined that there is no need for additional allogeneic or autologous bone marrow transplantation services. 

Authority G.S. 131E-176(25); 131E-177(1): ]31E-183(b). 

.6117 SOLID ORGAN TRANSPLANTATION SERVICES NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that there is no need for new solid organ transplant services. 

Authority G.S. 131 £-176(25): 131E-1 77(1): 131 E-1 83(b). 

.6118 GAMMA KNIFE NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for a gamma knife. 

Authority G.S. 131E-176(25): 131 E-1 77(1): 131E-183(b). 

.61 19 LITHOTRIPTER NEED DETERMINATION (REVIEW CATEGORY H) 

It is determined that there is no need for additional lithotripters. 

Authority G.S 131E-176(25): 131E-177(1): 13IE-183(b). 

.6120 RADIATION ONCOLOGY TREATMENT CENTERS NEED DETERMINATION (REVIEW 
CATEGORY H) 

It is determined that there is a need for one additional Radiation Oncology Treatment Center in Cabarrus County or Stanly County. 



Authority G.S 131E-176(25): 131E-177(1): 131E-183(b). 

.6121 NURSING CARE BED NEED DETERMINATION (REVIEW CATEGORY B) 

It is determined that the counties listed in this Rule need additional Nursing Care Beds as specified. There is no need for additional 
Nursing Care Beds in other counties, except as otherwise provided in 10 NCAC 3R .6122. 





Number of Nursing Care 


County 


Beds Needed 


Caswell 


20 


Cabarrus 


70 


Rowan 


90 


Lee 


40 


Cumberland 


m 


Martin 


20 



Authority G.S 131E-176(25): 131E-177(1): 131E-183(b). 

.6122 DEMONSTRATION PROJECT TO ESTABLISH A NURSING CARE FACILITY FOR PERSONS 
WHO ARE DEAF OR HARD OF HEARING (REVIEW CATEGORY J) 

(a) It is determined that 90 nursing care beds are needed for a demonstration project to establish one new nursing care facility for 
persons who are deaf or hard of hearing. 

(b) The project may be developed in any county in the state. 

(c) The nursing care beds in this demonstration project shall not be counted in the nursing care bed inventory for the county in 
which the facility is developed. 

(d) Admissions to the nursing care facility shall be restricted to persons who are deaf or hard of hearing. "Hard of hearing" is 
defined for purposes of the demonstration project as persons with 60 decibel pure tone average in the better ear unaided and with a 
hearing impairment of sufficient degree to interfere with normal communication, as defined by speech reception thresholds. Hearing 
assessments used for screening admissions must be performed by a certified audiologist. 

(e) The demonstration project shall provide data to evaluate the effectiveness of this type of program, including an annual report 
to the Long-Term Care Committee and to the Division of Services for the Deaf and the Hard of Hearing with regard to at least the 
following measures: 

(1) Occupancy Rate; 



13:2 



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July 15, 1998 



189 



PROPOSED RULES 



- 



(2} Utilization by Percentage of Persons who are Deaf and by Percentage of Persons who are Hard of Hearing; 

(3) Patient Origin Data; 

(4) Cost Data, particularly with regard to ancillary communication seryjces and training; and 

(5) Consumer Satisfaction, including ratings from patients and family members. 

Authority G.S. niE-n6(25): 131E-177I1): 131E-I83(b). 

.6123 HOME HEALTH AGENCY OFFICE NEED DETERMINATION (REVIEW CATEGORY F) 

It is determined that there is a need for one additional Medicare-certified home health agency office to be located in Cumberland. 
Hoke. Robeson or Scotland County, to address the special needs of persons who are HIV positjye and persons with AIDS from this 
four county area. 

Authority G.S. 13IE-r6(25): UlE-H-'d): 13 IE- 183(b). 

.6124 DIALYSIS STATION NEED DETERMINATION 

(a) The Medical Facilities Planning Section (MFPS) shall determine need for new dialysis stations two times each calendar year, 
and shall make a report of such determinations available to aU who request it. This report shall be called the North Carolina 
Semiannual Dialysis Report (SDR). Data to be used for such determinations, and their sources, are as follows: 

(1) Numbers of dialysis patients, by type. countN and facility, from the Southeastern Kidney Council. Inc. (SEKC) and the Mid- 
Atlantic Renal Coalition. Inc. as of December 3 1 . 1997 for the March SDR and as of June 30. 1998 for the September SDR. 

(2) Certificate of need decisions, decisions appealed, appeals settled, and awards, from the Certificate of Need Section. DPS. 



(3) Facilities certified for participation in Medicare, from the Certification Section. DPS. 

(4) Need determinations for which certificate of need decisions have not been made, from MFPS records. 

Need determinations in this report shall be an integral p art of the State Medical Facilities Plan, as provided in G.S. 131E-I83. 
(b) Need for new dialysis stations shall be determined as follows: 
(1) County Need 

(A) The average annual rate (°o) of change in total number of dialysis patients resident in each county from the end of 
1993 to the end of 1997 is multiplied by the county's 1997 \ear end total number of patients in the SDR, and the 
product is added to each county's most recent total number of patients reported in the SDR. The sum is the county's 
projected total 1998 patients. 

(B) The percent of each county's total patients who were home dialysis patients at the end of 1997 is multiplied by the 
county's projected total 1998 patients, and the product is subtracted from the county's projected total 1998 patients. 
The remainder is the county's projected 1998 in-center dialysis patients. 

(C) The projected number of each county's 1998 in-center patients is divided by 3.2. The quotient is the projection of 
the county's 1998 in-center dialysis stations. 

(D) From each count\'s projected number of 1998 in-center stations is subtracted the county's number of stations 
certified for Medicare. CON-approved and awaiting certification, awaiting resolution of CON appeals, and the 
number represented by need determinations in previous State Medical Facilities Plans or Semiannual Dialysis 
Reports for which CON decisions have not been made. The remainder is the county's 1998 projected surplus or 
deficit. 

(E) If a county's 1998 projected station deficit is 10 or greater and the SDR shows that utilization of each dialysis facility 
in the county' is 80° o or greater, the 1998 county station need determination is the same as the 1998 projected station 



deficit. If a county's 1998 projected station deficit is less than 10 or if the utilization of any dialysis facility in the 



county is less than 80°'o. the county's 1998 station need determination is zero. 
(2) Facility Need 

A dialysis facility' located in a county for which the result of the County Need methodology js zero in the reference 
Semiannual Dialysis Report (SDR) is determined to need additional stations to the exlOt that: 

(A) Its utilization, reported in the current SDR, is 3.2 patients per station or greater. 

(B) Such need, calculated as follows, is reported in an application for a certificate of need: 

(i) The facility's number of in-center dialysis patients reported in the previous SDR (SDR ] ) is subtracted from 



the number of in-center dialysis patients reported jn the current SDR (SDR? ). The difference js multiplied 



by 2 to project the net in-center change for one year. Divide the projected net in-center change for the year 



by the number of in-center patients from SDR ] to determine the projected annual grov\th rate, 
(ii) The quotient from Subpart (b)(2)(B)(i) of this Rule is divided by 12. 
(iii) The quotient from Subpart (b)(2)(B)(ii) of this Rule is multiplied by the number of months from the most 

recent month reported [n the current SDR until the end of calendar 1998. 
(iv) The product from Subpart (b)(2)(B)(iii) of this Rule is multiplied by the number of the facility's in-center 



patients reported in the current SDR and that product is added to such reported number of in-center patients. 



190 NORTH CAROLINA REGISTER July 15, 1998 13:2 



PROPOSED RULES 



(v) The sum from Subpart (b)(2KB)(iv) of this Rule is divided by 3.2, and from the quotient is subtracted the 
facility's current number of certified and pending stations as recorded in the current SDR. The remainder is 
the number of stations needed. 
{Cj The facility may apply to expand to meet the need established in Subpart rb)(2)(B)(v) of this Rule, up to a maximum 
of 10 stations. 



("c) The schedule for publication of the North Carolina Semiannual Dialysis Report (SDR) and for receipt of certificate of need 
applications based on each issue of this report in 1998 shall be as follows: 



Data for 
Period Ending 


Receipt of 
SEKC Report 


Publication 
of SDR 


Receipt of 

CON Applications 


Beginning 
Review Dates 


Dec. 31.1997 
June 30. 1998 


Feb. 27. 1998 
Aug. 31. 1998 


March 20. 1998 
Sept. 21. 1998 


May 15, 1998 
Noy. 13. 1998 


June 1. 1998 
Dec. 1. 1998 



(d) An application for a certificate of need pursuant to this Rule shall be considered consistent with G.S. 131E-183(a)(l) only if 
it demonstrates a need by utilizing one of the methods of determining need outlined in this Rule. 

(e) An application for a new End Stage Renal Disease facilit\' shall not be approved unless it documents the need for at least 10 
stations based on utilization of 3.2 patients per station per week. 

(f) Home patients will not be included in determination of need for new stations. 

Authority G.S. 131E-176(25): B1E-I77(1): niE-l 83(b). 

.6125 HOSPICE NEED DETERMINATION (REVIEW CATEGORY F) 

It is determined that there is no need for additional Hospices. 

Authority G.S. 13IE-I76(25}; 131E-177(1); I31E-183(b). 

.6126 HOSPICE INPATIENT FACILITY BED NEED DETERMINATION (REVIEW CATEGORY F) 

(a) Single Counties. Single counties with a projected deficit of six or more beds are determined to have a bed need equal to the 
projected deficit. It is determined that there is no need for additional single county hospice inpatient facility beds. 

(b) Contiguous Counties. It is determined that any combination of two or more contiguous counties taken from the following list 
shall have a need for new hospice inpatient facility beds if the combined bed deficit for the grouping of contiguous counties totals 
six or more beds. Each county in a grouping of contiguous counties must have a deficit of at least one and no more than five beds. 
The need for the grouping of contiguous counties shall be the sum of the deficits in the individual counties. For purposes of this Rule, 
"contiguous counties" shall mean a grouping of North Carolina counties which includes the county in which the new hospice inpatient 
facility is proposed to be located and any one or more of the North Carolina counties which have a common border with that county, 
even if the borders only touch at one point. No county may be included in a grouping of contiguous counties unless it is listed in the 
following table: 



County 


Hospice Inpatient 
Bed Deficit 


Ashe 




1 


Haywood 
Jackson 




1 
1 


Rutherford 




2 


Watauga 
McDowell 




1 

1 


Wilkes 




1 


Yadkin 




1 


Yancey 
Alamance 




1 

4 


Davidson 




2 


Caswell 




1 


Rockingham 
Stokes 




2 

1 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



191 



PROPOSED RULES 



Sum 

Cabarrus 

Gaston 

Iredell 

Lincoln 

Mecklenburg 

Rowan 

StanK 

Union 

Chatham 

Durham 

Johnston 

Wake 

Franklin 

Vance 

Hoke 

Bladen 

Brunswick 

Columbus 

Cumberland 

Harnett 

Moore 

Pender 

Richmond 

Montgomery 

Robeson 

Scotland 

Bertie 

Carteret 

Craven 

Duplin 

Edgecombe 

Hertford 

Nash 

Halifax 

Onslow 

Pitt 

Lenoir 

Wilson 



2 
2 
4 
1 
1 
3 
1 
2 
2 
1 
3 
i 
4 
i 
1 
1 
1 
2 
3 
2 
1 
2 
1 
3 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
i 
2 
2 
1 
1 



Authority- G.S. 131E-r6(25): 131E-r-ll): 1 31 E- 183(b). 

.6127 PSYCHIATRIC BED NEED DETERMINATION (REVIEW CATEGORY C) 

It is determined that there is no need for additional psychiatric beds. 

Authority G.S. UlE-l'dCS): 131E-!"(1/: 131E-183(hl. 

.6128 CHEMICAL DEPENDENCY TREATMENT BED NEED DETERMINATION (REVIEW CATEGORY C) 

(a) It is determined that there is no need for an\ additional chemical dependency treatment beds other than detox-onK beds for 



adults. TTie follow ing table lists the mental health planning areas that need detox-onK beds for adults and identifies the number of 



such beds needed in each planning area. There is no need for additional detox-onK' beds for adults in any other mental health planning 



Mental Health Planning Areas 
(Constituent Counties) 



Mental Health 
Planning Regions 



Number of Detox-OnK 
Beds Needed 



1 (Jackson. Ha\Avood. Macon. Cherokee. 



W 



10 



192 



NORTH CAROLINA REGISTER 



July 15. 1998 



13:2 



PROPOSED RULES 



Clav, Graham. Swain) 






4 (Transylvania. Henderson) 


w 


10 


5 (Caldwell, Burke, Alexander, McDowell) 


W 


10 


6 (Rutherford, Polk) 


W 


10 


1 1 (Rowan, Iredell, Davie) 


W 


10 


13 (Surry. Yadkin) 


NC 


2 


15 (Rockingham) 


NC 


10 


17 (Alamance, Caswell) 


NC 


6 


18 (Orange, Person, Chatham) 


NC 


2 


20 (Vance. Granville, Franklin. Warren) 


NC 


10 


21 (Davidson) 


SC 


10 


23 (Robeson, Bladen. Scotland, Columbus) 


SC 


5 


26 (Johnston) 


SC 


7 


27 (Wake) 


SC 


26 


31 (Wayne) 


E 


4 


32 (Wilson. Greene) 


E 


10 


33 (Edgecombe, Nash) 


E 


6 


34 (Halifax) 


E 


10 


35 (Craven, Jones, Pamlico. Carteret) 


E 


10 


36 (Lenoir) 


E 


10 


38 (Hertford, Bertie, Gates. Northampton) 


E 


4 


39 (Beaufort, Washington, Tyrrell, Hyde. Martin) 


E 


5 


40 (Pasquotank, Chowan. Perquimans, Camden, 


E 


10 


Dare, Currituck) 






41 (Duplin, Sampson) 


E 


10 



(b) "Detox-only beds for adults" are chemical dependency treatment beds that are occupied exclusively by persons who are 1 8 years 
of age or older who are experiencing physiological withdrawal from the effects of alcohol or other drugs. 

(c) The county or counties which comprise each mental health planning area are listed in 10 NCAC 3R .6104(b). 

(d) Detox-only beds for adults may be developed outside of the mental health planning area in which they are needed if: 

(1) The beds are developed in a contiguous mental health planning area that is within the same mental health planning region, 
as defined by 10 NCAC 3R .6104(c): and 

(2) The program board in the planning area in which the beds are needed and the program board in the planning area in which 
the beds are to be developed each adopt a resolution supporting the development of the beds in the contiguous planning 
area. 

Authority G.S. 131 £-176(25): 131E-177(1): 131E-183{b). 

.6129 INTERMEDIATE CARE BEDS FOR THE MENTALLY RETARDED NEED DETERMINATION 
(REVIEW CATEGORY C) 

Intermediate Care Beds for the Mentally Retarded. It is determined that the mental health planning areas listed in the following 
table need additional Intermediate Care Beds for the Mentally Retarded ("ICF/MR beds"). The table identifies the number of new 
child and adult ICF/MR beds needed by each of the listed planning areas. In all but the Forsyth-Stokes Mental Health Planning Area, 
the new ICF/MR beds shall only be used to convert existing five-bed ICF/MR facilities into six-bed facilities. In the Forsyth-Stokes 
Mental Health Planning Area, the ICF/MR bed shall be used only for a one-bed addition to an existing ICF/MR facility of nine beds 
or less. The addition of a bed must result in the reduction of "per client costs." There is no need for new ICF/MR facilities or for 
any additional ICF/MR beds in any other mental health planning areas, except as provided in Rule 10 NCAC 3R .6106(a)(8). 



Need 
Mental Health Planning Area (Constituent Counties) Determination 



Child Adult 

8 (Gaston-Lincoln) 1 

10 (Mecklenburg) 2 

14 (Forsyth. Stokes) i 

21 (Davidson) i 

24 (Cumberland) 1 

37 (Pitt) 1 



13:2 NORTH CAROLINA REGISTER Julv 15, 1998 193 



PROPOSED RULES 



AuthorinG.S. 131E-r6(25): 131E-r^(l): 131E-183fh). 

.6130 POLICIES FOR GENERAL ACUTE CARE HOSPITALS 

(a) Use of Licensed Bed Capacity Data for Planning Purposes. For planning purposes the number of licensed beds shall be 
determined by the Division of Facility Services in accordance with standards found in 10 NCAC 3C .6200 and .3102(d). 

(b) Utilization of Acute Care Hospital Bed Capacit\. Conversion of underutilized hospital space to other needed purposes shall 
be considered an alternative to new construction. Hospitals falling below utilization targets in Paragraph (e) of this Rule are assumed 
to have underutilized space. Any such hospital proposing new construction must clearly demonstrate that it is more cost-effective 
than conversion of existing space. 

(c) Exemption from Plan Provisions for Certain Academic Medical Center Teaching Hospital Projects. Projects for which 
certificates of need are sought h\ academic medical center teaching hospitals may qualify for exemption from provisions of 10 NCAC 
3R .6107 through .6129. 

(1) The State Medical Facilities Planning Section shall designate as an Academic Medical Center Teaching Hospital any 
facility" whose application for such designation demonstrates the following characteristics of the hospital: 

(A) Serves as a primary teaching site for a school of medicine and at least one other health professional school providing 
undergraduate, graduate and postgraduate education. 

(B) Houses extensive basic medical science and clinical research programs, patients and equipment. 

(C) Serves the treatment needs of patients from a broad geographic area through multiple medical specialties. 

(2) Exemption from the provisions of 10 NCAC 3R .6107 through .6129 shall be granted to projects submitted by Academic 
Medical Center Teaching Hospitals designated prior to January 1 . 1990 which projects comply with one of the following 
conditions: 

(A) NecessarN to complement a specified and approved expansion of the number or types of students, residents or 
faculty, as certified by the head of the relevant associated professional school; or 

(B) Necessary to accommodate patients, staff or equipment for a specified and approved expansion of research activities. 
as certified b\' the head of the entity sponsoring the research: or 

(C) Necessary to accommodate changes in requirements of specialty education accrediting bodies, as evidenced by 
copies of documents issued b\ such bodies. 

(d) Reconversion to Acute Care. Facilities redistributing beds from acute care bed capacity to rehabilitation or psychiatric use shall 
obtain a certificate of need to convert this capacity back to acute care. Application for reconversion of acute care beds converted to 
psychiatry or rehabilitation back to acute care beds shall be evaluated against the hospital's utilization in relation to the target 
occupancies for acute care beds shown beloyv. without regard to the acute care bed need determinations shoyvn in 10 NCAC 3R .6107. 

Licensed Bed Capacity Percent Occupancy 

i-49 65io 

50:99 70% 

100ii99 75% 

200:699 80% 

700- 81.5% 

(e) Replacement of Acute Care Bed Capacity. The evaluation of proposals for either partial or total replacement of acute care beds 



(i.e.. construction of ne\N space for existing acute care beds) shall be evaluated against the utilization of the total number of acute care 



beds in the applicant's hospital in relation to the target occupancy of the total number of beds in that hospital which is determined 
as follows: 

Total Licensed Acute Care Beds Target Occupancy (Percent) 

1:49 65% 

50:99 70% 

100ii99 75% 

200z699 80% 

700+ 81.5% 



(f) Allogeneic Bone Marrow Transplantation Services. Allogeneic bone marrow transplants shall be provided only in facilities 



having the capabiliK of doing HLA matching and of management of patients having solid organ transplants. At their present stage 



of development it is determined that allogeneic bone marrow transplantation services shall be limited to Academic Medical Center 
Teaching Hospitals. 

(g) Solid Organ Transplantation Services. Solid organ transplant services shall be limited to Academic Medical Center Teaching 
Hospitals at this stage of the development of this service. 

AuthorinG.S. 13IE-r6(25l: UlE-l'-^tl): 131E-I83(b). 

.6131 POLICIES FOR INPATIENT REHABILITATION SERVICES 

194 NORTH CAROLINA REGISTER July 15,1998 13:2\ 



PROPOSED RULES 



(a) After applying other required criteria, when superiority 
among two or more competing rehabihtation facility certificate 
of need applications is uncertain, favorable consideration shall 
be given to proposals that make rehabilitation services more 
accessible to patients and their families or are part of a 
comprehensive regional rehabilitation network. 

(b) Rehabilitation care which can be provided in an outpatient 
or home setting shall be provided in these settings. All new 
inpatient rehabilitation programs are required to provide 
comprehensive outpatient rehabilitation services as part of their 
service delivery programs. 

Authority G.S. 131E-176(25): 131E-177(1); 131E-I83(b). 

.6132 POLICY FOR AMBULATORY SURGICAL 
FACILITIES 

Multi-Specialty Ambulatory Surgery. After applying other 
required criteria, when superiority among two or more 
competing ambulatory surgical facility certificate of need 
applications is uncertain, favorable consideration shall be given 
to "multi-specialty programs" over "specialty programs" in areas 
where need is demonstrated in 10 NCAC 3R .6109. A multi- 
specialty ambulatory surgical program means a program 
providing services in at least three of the following areas: 



Medicare program. Beds developed under this Paragraph are 
intended to provide placement for residents only when 
placement m other long-term care beds is unavailable jn the 
geographic area. Hospitals which develop beds under this 
Paragraph shall discharge patients to other nursing facilities with 
available beds in the geographic area as soon as possible where 
appropriate and permissible under applicable law. Necessary 
documentation including copies of physician referral forms (PL 
2) on all patients in hospital-based nursing units shall be made 
available for review upon request by duly authorized 
representatives of licensed nursing facilities. 

(c) For purposes of this Paragraph, beds in hospital-based 
long-term nursing care shall be certified as a "distinct part" as 
defined by the Health Care Financing Administration. Beds in 
a "distinct part" shall be converted ft'om the existing licensed bed 
capacity of the hospital and shall not be reconverted to any other 
category or type of bed without a certificate of need. An 
application for a certificate of need for reconverting beds to 
acute care shall be evaluated against the hospital's service needs 
utilizing target occupancies shown in J_0 NCAC 3R ■6130(d). 
without regard to the acute care bed need shown in 1 NCAC 3R 
.6107. 

(d) A certificate of need issued for a hospital-based long-term 
nursing care unit shall remain in force as long as the following 



gynecology, otolaryngology, plastic surgery, general surgery. conditions are met: 



ophthalmology, orthopedics, urology, and oral surgery. An 
ambulatory surgical facility shall provide at least two designated 
operating rooms with general anesthesia capabilities, and at least 
one designated recovery room. 

Authority G.S. 131 £-176(25): 131E-r-(l): 131E-183(b). 



.6133 POLICY FOR PROVISION OF HOSPITAL- 
BASED LONG-TERM NURSING CARE 

(a) A certificate of need may be issued to a hospital which is 
licensed under G.S. 13 IE. Article 5^ and which meets the 



conditions set forth in this Paragraph and in 10 NCAC 3R . 1 100. 
to convert up to 10 beds from its licensed acute care bed capacity 
for use as hospital-based long-term nursing care beds without 
regard to determinations of need in 10 NCAC 3R .6121 if the 
hospital: 

(1) is located in a county which was designated as non- 
metropolitan by the US Office of Management and 
Budget on January 1. 1998: and 

(2) on January 1, 1998. had a licensed acute care bed 
capacity of 1 50 beds or less. 

The certificate of need shall remain in force as long as the 
Department of Health and Human Services determines that the 
hospital is meeting the conditions outlined in this Paragraph. 

(b) "Hospital-based long-term nursing care" is defined as 
long-term nursing care provided to a patient who has been 
directly discharged from an acute care bed and cannot be 
immediately placed in a licensed nursing facility because of the 
unavailability of a bed appropriate for the individual's needs. 
Determination of the patient's need for hospital-based long-term 
nursing care shall be made in accordance with criteria and 
procedures for determining need for long-term nursing care 
administered by the Division of Medical Assistance and the 



(1) the beds shall be certified for participation in the Title 
XVlll (Medicare) and Title XIX (Medicaid) 
Programs; 

(2) the hospital discharges residents to other nursing 
facilities in the geographic area with available beds 
when such discharge is appropriate and permissible 
under applicable law; 

(3) patients admitted shall have been acutely ill inpatients 
of an acute hospital or jts satellites immediately 
preceding placement in the unit. 

(e) The granting of beds for hospital-based long-term nursing 
care shall not allow a hospital to convert additional beds without 
first obtaining a certificate of need. 

(f) Where any hospital, or the parent corporation or entity of 
such hospital, any subsidiary corporation or entity of such 
hospital, or any corporation or entity related to or affiliated with 
such hospital by common ownership, control or management: 

(1) applies for and receives a certificate of need for long- 
term care bed need determinations jn 10 NCAC 3R 
.6121; or 

(2) currently has nursing home beds licensed as a part of 
the hospital under G.S. 13 IE. Article 5; or 

(3) currently operates long-term care beds under the 
Federal Swing Bed Program (P.L. 96-499). 

such hospital shall not be eligible to apply for a certificate of 
need for hospital-based long-term care nursing beds under this 
Rule. Hospitals designated by the State of North Carolina as 
Rural Primary Care Hospitals pursuant to Section 1 820(f) of the 
Social Security Act, as amended, which have not been allocated 
long-term care beds under provisions of G.S. 13 IE- 175 through 
131E-190. may apply to develop beds under this Paragraph. 
However, such hospitals shall not develop long-term care beds 
both to meet needs determined in 10 NCAC 3R .6121 and this 



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195 



PROPOSED RULES 



Paragraph. 

(g) Beds certified as a "distinct part" under this Paragraph 
shall be counted in the inventory of existing long-term care beds 
and used in the calculation of unmet long-term care bed need for 
the general population of a planning area. Applications for 
certificates of need pursuant to this Paragraph shall be accepted 
only for the February I review cycle. Beds awarded under this 
Paragraph shall be deducted from need determinations for the 
county as shown in U) NCAC 3R .6121. Continuation of this 
Rule shall be reviewed and approved by the Department of 
Health and Human Services annually. Certificates of need 
issued under policies analogous to this policy in State Medical 
Facilities Plans subsequent to the 1986 State Medical Facilities 
Plan are automatically amended to conform with the provisions 
of this Paragraph. The Department of Health and Human 
Services shall monitor this program and ensure that patients 
affected by this Paragraph are receiving appropriate services. 
and that conditions under which the certificate of need was 
granted are being met. 

Authority- G.S. 131E-r6(25l: 131E-r^ll): 131E-183(b>. 

.6134 POLICY FOR NURSING CARE BEDS IN 
CONTINUING CARE FACILITIES 

(a) Qualified continuing care facilities may include from the 
outset, or add or convert bed capacirs' for long-term nursing care 
without regard to tlie bed need shown in 10 NCAC 3R .6121. 
To qualifs for such exemption, applications for certificates of 
need shall show that the proposed long-term nursing bed 
capacity: 
ID 



Will only be developed concurrently with, or 
subsequent to construction on the same site, of 
facilities for both of the following levels of care: 



(A) independent 



living 



accommodations 



(apartments and homes) for persons who are 
able to carry out normal activities of daily 
living without assistance; such 

accommodations may be in thie form of 
apartments, flats, houses, cottages, and rooms 
within a suitable structure; 
(B) licensed adult care home beds for use by 
persons who, because of age or disability 
require some personal services, incidental 
medical services, and room and board to assure 
their safety and comfort. 
(2) Will be used exclusively to meet the needs of persons 
with whom the facilin has continuing care contracts 
(in compliance with the Department of Insurance 
statutes and rules) who have lived in a non-nursing 
unit of the continuing care facility for a period of at 
least 30 days. Exceptions shall be allowed when one 
spouse or sibling is admitted to the nursing unit at the 
time the other spouse or sibling moves into a non- 
nursing unit, or when the medical condition requiring 
nursing care was not known to exist or be imminent 
when the individual became a party to the continuing 
care contract. Financial consideration paid by persons 
purchasing a continuing care contract shall be 



equitable betyveen persons entering at the independent 
living and licensed adult care home levels of care. 

(3) Reflects the number of beds required to meet the 
current or projected needs of residents with whom the 
facility has an agreement to provide continuing care, 
after making use of al] feasible alternatives to 
institutional nursing care. 

(4) Will not be certified for participation in the Medicaid 
program. 

(b) One half of the long-term nursing beds developed under 
this exemption shall be excluded from the inventory used to 
project bed need for the general population. Certificates of need 
issued under policies analogous to this policy in State Medical 
Facilities Plans subsequent to the 1985 SMFP are automatically 
amended to conform with the provisions of this Paragraph. 
Certificates of need awarded pursuant to the provisions of 
Chapter 920. Session Laws 1983. or Chapter 445. Session Laws 
1985 shall not be amended. 

Authority G.S. 131 £-176(25): 131 £-177(1): 131 £-183(1). 

.6135 POLICY FOR DETERMINATION OF NEED 
FOR ADDITIONAL NURSING BEDS IN 
SINGLE PROVIDER COUNTIES 

When a long-term care facility with fewer than 80 nursing care 
beds is the only nursing care facility within a county, it may 



apply for a certificate of need for additional nursing beds in 
order to bring the minimum number of beds available within the 
county to no more than 80 nursing beds without regard to the 
nursing bed need determination for that county as listed in 10 
NCAC 3R .6121. 

Authority- G.S. 131£-176(25): 13l£-177(l): I31£-183(b). 

.6136 POLICY FOR RELOCATION OF CERTAIN 
NURSING FACILITY BEDS 

A certificate of need to relocate existing licensed nursing 
facility beds to another county (ies) may' be issued to a facility 
licensed as a nursing facility under G.S. 1 3 1 E. Article 6. Part A. 
provided that the conditions set forth in this Paragraph and in 10 
NCAC 3R .1 100 and the review criteria in G.S. 13 1E-I83(a) are 
met. 

(I) A facility applying for a certificate of need to relocate 
nursing facility' beds shall demonstrate that: 

(a) it is a non-profit nursing facility supported by 
and directly affiliated with a particular religion 
and that it is the only nursing facility in North 
Carolina supported by and affiliated with that 
religion; 

(b) the primary purpose for the nursing facility's 
existence is to provide long-term care to 
followers of the specified religion in an 
environment which emphasizes religious 
customs, ceremonies, and practices; 

(c) relocation of the nursing facility beds to one or 
more sites is necessary' to more effectively 
provide long-term nursing care to followers of 
the specified religion in an environment which 



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PROPOSED RULES 



emphasizes religious customs, ceremonies, and practices: 

(d) the nursing facility is expected to serve 
followers of the specified religion fi"om a 
multi-count\' area; and 

(e) the needs of the population presently served 
shall be met adequately pursuant to G.S. 1 3 1 E- 
183. 

£2] Exemption from the provisions of 10 NC AC 3 R .6121 
shall be granted to a nursing facility for purposes of 
relocating existing licensed nursing beds to another 
county provided that it complies with all of the criteria 
listed in this Rule. 

(3) Any certificate of need issued under this Rule shall be 
subject to the following conditions: 

(a) the nursing facility shall relocate beds in at 
least two stages over a period of at least six 
months: and 

(b) the nursing facility shall provide a letter to the 
Medical Facilities Licensure Section, on or 
before the date that the first group of beds are 
relocated, irrevocably committing the facility to 
relocate all of the nursing facility beds for 
which it has a certificate of need to relocate: 
and 

(c) subsequent to providing the letter to the 
Medical Facilities Licensure Section described 
in Subitem (3)(b) of this Rule, the nursing 
facility shall accept no new patients in the beds 
which are being relocated, except new patients 
who, prior to admission, indicate their desire to 
transfer to the facility's new location(s). 

Authority G.S. !31E-176(25}: 131E-177(1); 131E-183(b). 

.6137 POLICY FOR HOME HEALTH SERVICES 

Need Determination Upon Termination of County's Sole 
Home Health Agency. When a home health agency's board of 
directors, or in the case of a public agency, the responsible 
public body, votes to discontinue the agencN's provision of home 
health services: and 

(1) the agency is the only home health agency with an 
office physically located in the county: and 

(2) the agency is not being lawfully transferred to another 
entity: 

need for a new home health agency office jn the county is 
thereby established through this Rule. Following receipt of 
written notice of such decision from the home health agency's 
chief administrative officer, the Certificate of Need Section shall 
give public notice of the need for one home health agency office 
in the county, and the dates of the review of applications to meet 
the need. Such notice shall be given no less than 45 days prior 
to the final date for receipt of applications in a newspaper 
serving the county and to home health agencies located outside 
the county reporting serving county patients in the most recent 
licensure applications on file. 

Authority G.S. 131 £-176(25): 131E-177(1): 131E-183(b>. 



.6138 POLICY FOR END-STAGE RENAL DISEASE 
DIALYSIS SERVICES 

Relocation of Dialysis Stations. Relocations of existing 

dialysis stations are allowed only within the host county and to 

contiguous counties currently served by the facility. Certificate 

of need applicants proposing to relocate dialysis stations shall: 

(1) demonstrate that the proposal shall not result in a 

deficit in the number of dialysis stations in the county 

that would be losing stations as a result of the 

proposed project, as reflected in the most recent 

Semiannual Dialysis Report: and 

£2} demonstrate that the proposal shall not result in a 

surplus of dialysis stations in tlie county that would 

gain stations as a result of the proposed project, as 

reflected in the most recent Semiannual Dialysis 

Report. 

Authority G.S 131E-176(25): 131E-177(1): 131E-183(h). 

.6139 POLICIES FOR PSYCHIATRIC INPATIENT 
FACILITIES 

(a) Transfer of Beds from State Psychiatric Hospitals to 
Community Facilities. Beds in the State psychiatric hospitals 
used to serve short-term psychiatric patients may be relocated to 
community facilities. However, before beds are transferred out 
of tlie State psychiatric hospitals, appropriate services and 
programs shall be available in tlie community. State hospital 
beds which are relocated to community facilities shall be closed 
within 90 days following the date the fransferred beds become 
operational in tlie community. Facilities proposing to operate 
transferred beds shall commit to serve the type of short-term 
patients normally placed at the State psychiatric hospitals. To 
help ensure that relocated beds will serve those persons who 
would have been served bv the State psychiatric hospitals, a 
proposal to transfer beds from a State hospital shall include a 
written memorandum of agreement between the area 
MH/DD/SAS program serving the county where the beds are to 
be located, the Secretary' of Human Resources, and the person 
submitting the proposal. 

(b) Allocation of Psychiatric Beds. A hospital submitting a 
Certificate of Need application to add inpatient psychiatric beds 
shall convert excess licensed acute care beds to psvchiafric beds. 
In determining excess licensed acute care beds, the hospital shall 
subtract the average occupancy rate for its licensed acute care 
beds over the previous 1 2-month period from the appropriate 
target occupancy rate for acute care beds listed in 10 NCAC 3R 
.6130(d) and multiply the difference by the number of its 
existing licensed acute care beds. 

(c) Linkages Betyveen Treatment Settings. An applicant 
applying for a certificate of need for psychiatric inpatient facility 
beds shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and invited to comment on the proposed services. 

Authority G.S. 131 £-176(25): 131£-177(1): 131E-183(b). 

.6140 POLICY FOR CHEMICAL DEPENDENCY 
TREATMENT FACILITIES 



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197 



PROPOSED RULES 



Linkages Between Treatment Settings. An applicant applying 
for a certificate of need for chemical dependency treatment 
facility beds shall document that the affected area mental health, 
developmental disabilities and substance abuse authorities have 
been contacted and inyited to comment on the proposed services. 

Authority G.S. I31E-176(25); 131 £-177(1); 131E-183(b). 

.6141 POLICIES FOR INTERMEDIATE CARE 

FACILITIES FOR MENTALLY RETARDED 

(a) Determination of Intermediate Care Bed Need for 
Mentally Retarded^Developmentally Disabled Persons. After 
a pplying other required criteria, when superiority among two or 
more competing ICF/MR certificate of need applications is 
uncertain, favorable consideration shall be given to counties that 
do not have ICF/MR group homes when such counties are p art 
of a multi-county area for which a need is shown in 10 NCAC 
3R .6129. 

(b) Linkages Between Treatment Settings. An applicant 
applying for a certificate of need for intermediate care facility 
beds for mentally retarded shall document that the affected area 
mental health, developmental disabilities and substance abuse 
authorities have been contacted and invited to comment on the 
proposed services. 

Authont^■ G.S. 131E-r6(25): 131E-I77(1); 131E-183(b). 



■K "K -X "K 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Secretary ofHeaUh and Human Services intends 
to amend rule cited as 10 NCAC 14C .1151. Notice of Rule- 
making Proceedings was published in the Register on December 
15. 1997. 

Proposed Effective Date: April 1. 1999 

Instructions on How to Demand a Public Hearing (must be 
requested in writing within 15 days of notice): .4 demand for 
public hearing must be requested in writing within 15 days of 
this notice and addressed to Charlotte F. Hall. Division of 
MH/DD/SAS 325 N. Salisbury Street. Raleigh. NC 2:- 60 3-5906. 

Reason for Proposed Action: In accordance with Senate Bill 
352. Section 11.11(1) of the 1997-554 Session Laws, to enact 
temporary rules to reduce Medicaid Spending, Fraud, and 
Abuse: and in that regard to provide proper procedures for 
enrollees to appeal ach'erse decisions by a contracting area 
program as set forth in this Rule. Federal regulation requires 
that a State plan provide an opportunity for a fair hearing to any 
person whose claim for assistance is denied or not acted upon 
promptly. 

Comment Procedures: Written comments should be submitted 
to Charlotte F. Hall. Rule-making Coordinator. Division of 
Mental Health Developmental Disabilities and Substance .Abuse 
Senices. 325 N. Salisbun,' Street. Albemarle Building. Raleigh. 
NC 2~ 603-5906. 



Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars (S5.000.000) in a 12-month period. 

CHAPTER 14 - MENTAL HEALTH: GENERAL 

SUBCHAPTER 14C - GENERAL RULES 

SECTION .1 100 - STATE AND FEDERAL FUNDS 
ADMINISTERED 

.1151 CAROLINA ALTERNATIVES 

(a) The Division may contract with area programs to 
implement a managed care program for mental health and 
substance abuse services for children pursuant to a waiver 
granted by the Secretary of the United States Department of 
Health and Human Services in accordance with Title XIX of the 
Social Security Act, known as the Carolina Alternatives 
program. 

(b) Funding shall be made available through monthly 
capitation payments received from the Division of Medical 
Assistance. 

(c) Funds shall be awarded and settled based on the 
provisions in the contract between the Division and the area 
program. 

(d) Enrollees shall have the right to appeal adverse decisions 
by a contracting area program, which are defined as: 

(1) denial of a request for first-time service or a service 
other than the current service; 

(2) reduction of a current service: 

(3) suspension of a current service: or 

(4) termination of a current service. 

(e) The Division shall comply, and shall insure that 
contracting area programs comply, with the following appeals 
procedures: 

( 1) Notification letter: 



iAJ 



tm 



IQ 



The area program shall send, via regular mail 

or pass by hand, a notification letter at the time 

of service authorization or at another time not 

later than 10 working days before the date of 

the action (reduction, suspension or 

termination). 

The area program shall mail the notification 

letter the same day as the date of the letter jn 

order to provide the recipient with the legal 

time period in which to appeal. 

When hand delivered, documentation that the 



t2j 



individual was given notice shall be 

represented by the date m the notification 

letter. 

A denial of requested services requires a 

notification, but is an exception to the lO-day 

advanced notification requirement. 

The notification letter shall contain the following 

information: 



mi 






specific information; 
reasons for the decision; 



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NORTH CAROLINA REGISTER 



July 15, 1998 



13:2Uii 



1^ 



PROPOSED RULES 



£3} 



(C) Medicaid regulations that support the decision: 

(D) the right to a State informal and formal hearing 
on the decision; 

£E} the right to a hearing when State or Federal law 
requires a change in service; 

(F) circumstances m which an expedited appeal 
may be requested; 

(G) steps required to start an appeal; 

(H) circumstances in which Medicaid is continued 
until a hearing decision. If an individual 
appeals to the State DMH/DD/SAS or to the 
Office of Administrative Hearings (OAH) 
before the effective date of the proposed 
service reduction, termination, or suspension, 
noted in the letter, authorization for payment of 
the individual's current services will continue 
until a decision is issued; and 
(1) that if an individual abandons or loses an 
appeal, the State has the legal right to recover 
the cost of the disputed treatment, and that such 
costs are accumulated from the beginning of 
the date of the service reduction, termination or 
suspension. 

The notification letter also shall contain treatment 

continuation information as follows: 



(A) the area program may offer other treatment 
services when it denies a person's request for a 
specific treatment. 

(B) the individual may receive the treatment 
specifically requested by paying for it. 

(C) when and if the individual's medical condition 
changes, the area program will re-evaluate the 
request for a specific treatment. 

(4) Exceptions to 10-day notification requirement. Notice 
shall be given no later than the date of the service 
reduction, termination or suspension where: 

(A) recipient's treating physician changes the 
service (e.g.. discharge from a short term or 
crisis hospitalization); 

(B) agency has factual information confirming the 
death of the enrollee; 

(C) agency receives a written statement signed by 
an enrollee that services are no longer desired; 
or gives information that requires termination 
or reduction of services and understands that 
this must be the result of supplying that 
information; 

(D) enrollee has been admitted to a service that is 
not included in the approved service network; 
and 

(E) location of the enrollee is unknown as certified 
by the post office. 

(f) Requesting a State Informal Hearing: 

(1) Medicaid recipients have a right to an informal 
hearing by an impartial hearing officer at the Division 
of Mental Health. Developmental Disabilities and 
Substance Abuse Services (DMH/DD/SAS). 

(2) This right shall be secured by returning the appeal 



form (included with the notification letter) to the State 
DMH/DD/SAS. 

(3) The form may be sent by mail, facsimile, or hand- 
delivered. 

{4j Upon receipt of an informal appeal request, the 
DMH/DD/SAS shall contact the enrollee and schedule 
a hearing before a hearing officer within 30 days from 
receipt of the written request. 

(5) Ihe DMH/DD/SAS shall inform the enrollee in 
writing of the hearing date, the hearing procedures, 
and of their legal rights during the hearing. 

£6} The DMH/DD/SAS promptly shall inform the area 
program of the appeal. With the enrollee's 
permission, the area program shall contact the enrollee 
within three working days of notification from 
DMH/DD/SAS to begin its impartial dispute 
resolution process: 

(A) Each area program shall have an informal 
dispute resolution process that is approved in 
writing by DMH/DD/SAS; and 

(B) The process shall include both impartial 
dispute resolution and impartial 
clinical/medical review. 

(7) Informal hearing procedure: 

(A) The enrollee has the right to an in-person 
hearing. Before the hearing, the enrollee has 
the right to review the case file and all records 
that will be used at the hearing. 

(B) The enrollee shall not be denied access to 
review these documents. 

(C) All written material that the enrollee or his 
representative want presented at the hearing 
must be received by the Division hearing office 
at least five days before the scheduled hearing. 

(D) If the enrollee or his representative fails to 
appear at the scheduled hearing, without good 
cause, the hearing still will be held. "Good 
cause" means circumstances beyond the control 
of the enrollee or his representative. 

(E) If at any time during the process the enrollee's 
medical condition worsens and the enrollee is 
re-evaluated for authorization for the current or 
higher service, the informal appeal shall be 
concluded in favor of the enrollee. 

(F) The hearing officer shall give appropriate 
consideration to aU matters and documents 
presented either by the enrollee or by the area 
program. Witnesses shall not be required to 
take an oath before making a statement. 

(G) Neither the North Carolina Rules of Evidence. 
the Federal Rules of Evidence, the North 
Carolina Rules of Civil Procedure, nor the 
Federal Rules of Civil Procedure shall govern 
the hearing procedures. 

(H) The hearing officer shall insure that the hearing 
is conducted in a fair, impartial, and non- 
adversarial manner. 
(I) The hearing officer shall issue a written 



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July 15, 1998 



199 



PROPOSED RULES 



decision of his findings and conclusions, and 
shall send a cop\ to the enroilee and to the area 
program. The uTitten decision shall notify the 
enroilee of the right to appeal an adverse 
decision to the Office of Administrative 
Hearings (OAH) and the time period within 
which such appeal must be filed. The written 
decision shall include a Petition for Contested 
Case Hearing appropriate for filing at OAH. 

(8) State Formal Hearing: 

(A) The enroilee has the right to appeal an adverse 
decision by an area program directK to the 
OAH for a formal. e\ identiar> hearing. 

(B) The enroilee also ma\ appeal a DMH DP SAS 
hearing officer's adverse decision to OAH. 

(C) Either appeal must be filed in accordance with 
G.S. I50B. 

(D) If an enroilee appeals an area program adverse 
decision directK to OAH before the effective 
date of the proposed reduction, termination, or 
suspension, authorization for the current 
service will continue until a Recommended 
Decision is issued b\ OAH. 

(E) If an enroilee appeals an area program adverse 
decision after the effective date of the proposed 
reduction, termination, or suspension, the area 
program is not required to continue 
authorization for the current ser\ ice. 

ID if an enroilee appeals the DMH DP SAS 
hearing officer's decision to OAH. the area 
program is required to continue or reinstate 
authorization for the current service until a 
Recommended Decision is issued bv OAH. 

(G) If an enroilee appeals an area program adverse 
decision after the effective date of the proposed 
reduction, termination, or suspension, the area 
program is not required to continue 
authorization for the current service. 

(9) Recovery Procedures: If an enroilee abandons an 
appeal, or if after an appeal through OAH. the 
DMH DP SAS Final Agency Pecision upholds the 
area program's adverse decision, the State may 
commence to recover the financial costs of anv 
unauthorized sen, ices furnished to the enroilee as the 
result of taking the appeal. Financial costs accumulate 
from the area program's proposed date of service 
reduction, termination or suspension. 

(10) Expedited Appeals: 

(A) Emergency appeals mav be initiated bv oral or 
written communication to tlie area program or 
to the PMH PP S.AS. To start an emergency 
appeal the enroilee or his legally responsible 
person must attest, and a reasonably prudent 
person must believ e. that serv ices are urgently 
needed and the failure to provide them 
promptly or to continue them might reasonably 
cause deterioration, or impair improvement, in 
the enrollee's medical condition. 



(B) The area program shall conduct an expedited 
review within 24 hours of receipt of the 
request, and if its review upholds the adverse 
decision, the area program shall directly 
forward its decision and a copy of all relevant 
medical records to the PMH PPSAS. 

(C) The PMH PPSAS shall issue its decision 
within two working davs of the enrollee's 
request for expedited review. 

(P) The area program is required to continue 
authorization for the current sen, ice through an 
expedited appeal until the appeal is abandoned 
or OAH issues a Recommended Pecision. 

Authority- G.S. 122C-14: 122C-143.1: 122C-143.2: 122C-14': 
122C-14-.1; 122C-147.2: 42 C.F.R. 431; Social Security Act, 
Waiver under Sections 1915(b(l)) and (b)(4). 



TV ^ ye -x 



XKXXXXXXXW^ 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Social Sen-ices Commission intends to amend the 
rules cited as 10 .\C.4C 42C .3401. .3403. .3404. .3601. Xotice 
of Rule-making Proceedings was published in the Register on 
January 2. 1998. 

Proposed Effective Date: .April 1. 1999 

A Public Hearing will be conducted at 10:00 a.m. on 
September 9. 1998 at the Albermarle Building. Room 943-2. 325 
Sorth Salisbury Street. Raleigh. \C 2~603. 

Reason for Proposed Action: To adopt as permanent rules the 
temporary version of the licensure rules governing adult care 
homes which were adopted pursuant to Senate Bill 53. 

Comment Procedures: .Anyone wishing to comment on these 
proposed rules should contact Sharnese Ransome, Special 

.Assistant to the Director. .\C Division of Social Ser\-ices. 325 A'. 
Salisbury Street. Raleigh. .\C 2'603. (919) '33-3055. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars (S 5. 000. 000) in a 1 2-month period. 



CHAPTER 42 



INDIVIDUAL AND FAMILY 
SUPPORT 



SUBCHAPTER 42C - LICENSING OF FAMILY 
CARE HOMES 

SECTION .3400 - LICENSING INFORMATION 

.3401 THE LICENSE 

(a) The license w4W shall be issued bv the Division of Facility- 
Services wh e n, in the Pivision's judgment, when minimum 
requirements for licensing have been met under the rules of this 



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July 15, 1998 



13:2 



PROPOSED RULES 



Subchapter. It must The license shall be conspicuously posted 
in a public place in the home. 

(b) The license shall be in effect for 1 2 months from the date 
of issuance unless revoked for cause, voluntarily or involuntarily 
terminated, or changed to provisional licensure status. 

(c) A provisional license may be issued in accordance with 
th e following: G.S. 131D-2(b) . 

ft^ A provisional lic e ns e may b e issu e d by th e Divi s ion 
of Facility Servic e s to a n e wly lic e n se d facility or too 
facility und e rgoing a plann e d change of administrator 
when th e r e or e minor deficienci e s which would not 
e ndang e r th e h e alth, saf e ty or w e ll b e ing of r e sid e nts; 

(3) A provisional lic e nse may b e issu e d to a facility wh e n 
violations of th e rul e s of this Subchapt e r e ndang e r th e 
h e alth, safety or w e ll b e ing of r es id e nts, or when the 
administrator fails to submit a plan of corr e ction 
wh e r e l e ss e r infi"actions have been cited, or wh e n 
corr e ctions hav e not been fully made in accordanc e 
with th e administrator's approv e d plan of correction; 

(^ Th e monitoring and lic e nsing proc e ss b e gins with th e 
county d e partm e nt of s ocial s e rvic e s citing all 
violations of th e rul e s of this Subchapt e r and 
r e qu es ting the home to pr e par e a plan of corr e ction. 
Upon approving the plan of corr e ction, th e county 
d e partm e nt of s ocial s e rvic e s will monitor the hom e 's 
complianc e with the approved plan through follow up 
vi s its to th e hom e . If th e planned corrections have not 
b ee n made within the time agre e d to by th e 
administrator and approv e d by the county d e partm e nt 
of social — se rvic e s, th e county ' d e partment will 
imm e diat e ly notify' th e Divi s ion of Facility S e rvic es 
and r e qu es t its a s si s tanc e in as s uring complianc e ; 

(4) Wh e n it i s all e g e d by th e county d e partm e nt of s ocial 
s e rvic es that a facility is out of complianc e with th e 
rul es of this Subchapt e r and that on e of th e condition s 
m e ntion e d in Subparagraphs (c)(1) and (2) appli e s, 
th e Division of Facility S e rvic e s will provid e writt e n 
notification to th e administrator of th e all e g e d facts or 
all e g e d conduct which may warrant th e issuanc e of a 
provisional lic e ns e . This notic e will also announc e 
th e forthcoming visit by a consultant of th e Division 
of Facility S e rvic e s to th e facility to provid e the 
administrator with an opportunity to show th e hom e 's 
complianc e with th e rul e s of this Subchopt e r; 

(^ Ba se d on th e consultant's findings regarding th e 
all e g e d facts or all e g e d conduct which are to bo 
shar e d in writing with th e administrator, th e Division 
of Facility S e rvic e s may notify' the admini s trator of 
th e discontinuanc e of th e plan of corr e ction ba se d on 
finding no violations, or e xtend the tim e allow e d to 
corr e ct th e violations if th e r e is just cause, or issu e a 
provisional lic e ns e to th e hom e ; 

{^ If a provi s ional lic e ns e is issued, th e Division of 
Facility S e rvic es will provid e th e administrator with 
a written notic e sp e cify'ing th e reasons for th e 
provisional licens e , th e corr e ctiv e action n ee d e d, th e 
tim e fram e and any oth e r conditions impos e d; 

f?) A provisional licens e may b e issu e d for a duration of 



not l e ss than 30 days nor mor e than 90 days. If the 
Divi s ion of Facility S e rvic e s finds just cau se for a 
hom e 's failur e to corr e ct all violations within the 
initial time p e riod, it may e xt e nd th e provisional 
lic e ns e an additional 30 to 90 days. Additional 
e xt e nsions of b e tw ee n 30 to 90 days may be allow e d 
but in no ca se will a hom e b e p e rmitt e d to r e main on 
e xtended provisional statu s for mor e than on e y e ar; 

(S) If a hom e has held a provisional lic e n se for on e y e ar, 
its lic e ns e will t e rminat e on the anniversary dat e of 
th e initial issuanc e of th e provisional license on th e 
basi s of it s continu e d failur e to comply with th e rul e s 
of this Subchapt e r; 

(9) Th e administrator i s r es pon s ibl e for notify'ing th e 
Division of Facility S e rvic es through th e county 
d e partment of social s e rvic e s wh e n it has corr e ct e d all 
violations. — Th e Division of Facility S e rvic e s must 
v e rify' corr e ctions within 10 working days of th e 
notification and r e issu e the homo's original licens e if 
corr e ctions ar e confirm e d; 
fW) During th e tim e p e riod in which a provisional licen se 
is initially issu e d, staff of th e county departm e nt of 
social s e rvic e s and th e Division of Facility Services 
will conc e ntrat e th e ir efforts to provid e the hom e with 
consultation and t e chnical assistanc e through frequent 
visits to th e facility and conf e rences with th e 
administrator. The purposes of thi s contact ar e to aid 
th e home in its efforts to achiev e full complianc e with 
th e rules of thi s Subchapter, to make th e hom e w e ll 
awar e of th e con se qu e nc e s of non complianc e , and to 
docum e nt th e hom e ' s progr es s toward complianc e ; 

(1 l) (d) When a provisional license is issued, the 
administrator mast shall post the lic e nsur e docum e nt provisional 
license and a copy of the notice from the Division of Facility 
Services identifying the reasons for it, in place of the full 
license. 

Authority G.S. 131D-2: I43B-153. 

.3403 TERMINATION OF LICENSE 

(a) The Division of Facility Services shall take action to 
lic e ns e will automatically terminate the license when one of the 
following situations exist: 

(1) change of admini s trator ownership of the adult care 
home business ; or du e to illness, retir e m e nt, d e ath, 
p e rsonal r e qu es t, or any oth e r r e a s on; 

(2) change of location of heme; home. 
(5^ sal e or l e as e of hom e by admini s trator; 

(4) anniv e rsary — date — of — provisional — lic e ns e — held 

continuously for on e y e ar; 
iS) r e quir e d lic e nsing r e n e wal materials ar e not r e c e iv e d 

by th e Divi s ion of Facility Servic e s by e xpiration 

Qulc. 

(b) The license is not transferable or assignable. 

(c) The unexpired license shall be returned to the state 
Division of Facility Services by the county department of social 
services with the following information: 



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201 



PROPOSED RULES 



(1) reason for closing, 

(2) date of closing. 

(3) plans made for residents, 
(d) When an admini s trator the owner of the adult care home 

business voluntariK closes his home, a signed statement to this 
effect m«st shall be submitted to the count> department of social 
serv ices who wtU shall immediateK fon\ ard the statement to the 
Division of Facility. Services. The Administrator o\sner or his 
designee must shall give at least 30 da\ s prior notice of the 
closing to the county department of social services and the 
residents or their responsible persons. 

AuthonnG.S. 13W-2: 143B-153. 

.3404 DENI.\L AND REVOCATION OF LICENSE 

(a) A license ma> be denied or r e vok e d b\ the Division of 
FacilitN' Services at w\y tim e for s ub s tantial failure to compK' 
with the rules of this Subchapter. 

(b) Denial or r e vocation of lic e nsur e by the Division of 
Facilitv Services shall be effected by mailing to the applicant ef 
lic e ns e hold e r . b\ registered mail, a notice setting forth the 
particular reasons for such action. Such d e nial or r e vocation 
b e com e s eff e ctiv e 20 davs aft e r mailing th e notic e . 

(c) A license ma\ be revoked by the Division of Facihty 
Services in accordance with G.S. 131D-2(b) and G.S. 13ID-29. 

fe^d) When a facilitv' receives a notice of revocation, the 
administrator shall inform each resident and his responsible 
person of the notice and the basis on which it was issued. 

Author in- G.S. 131D-2. 

SECTION .3600 - ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

.3601 ADMINISTRATIVE PENALTY 
DETERMINATION PROCESS 

(a) The county department of social services or the Division 
of Facility Services shall identity areas of non-compliance 
resulting from a complaint investigation or monitoring or survey 
visit which mav be violations of residents' rights contained in 
G.S. 131D-21 or rules contained in this Subchapter. If the 
county department of social serv ices or the Division of Facility 
Services decides to r e comm e nd an administrativ e p e nalty as 
d e fin e d in G.S. 13 ID 3 t that the violation is a Type B violation 
as defined in G.S. 131D-34(a)(2). u shall require a plan of 
correction pursuant to G.S. 131D-34(a)(2). If the counts 

department of social services or the Division of Facility Services by — the — P e nalty — R e vi e w — Committee. U- — the — p e nalt)' 

decides that the violation js a Tvpe A violation as defined jn 
G.S. 131D-34(a)( I ). it shall follow the procedure required m 
G.S. 13ID-34(a)(I )(a)-(c) and prepare an administrative penalty 



a copy of the contents of the proposal; and then extended an 
opportunity to request a local conference with the county 
d e partment — &f — social — s e rvic es agency proposing the 
administrative penalty, allowing the licensee 1 days to respond 
prior to forwarding the proposal to the Department. The 
conference, if requested of the county departmen t of social 
services, shall include the county department director or his 
designee, manag e m e nt s taff The licensee may request a 
conference and produce information to cause the county 
d e partm e nt of social s e rvic e s agency recommending the 
administrative penalty to change its proposal. The county 
d e partm e nt of social — s e n'ic e s agency recommending the 
administrative penalty mav rescind its proposal: or change its 
proposal and submit it to the Department or submit it unchanged 
to the Department pursuant to G.S. 13ID-34(c2). 

(b) An assistant chief of the Domiciliary and Group Care 
Licensure Section shall receive the proposal, and review it for 
completeness and evaluate jt to determine the penalU' amount. 

(1) If the proposal is complete, the assistant chief shall 
make a decision on the typ e and amount of penalty to 
be submitted for consideration and whether to 
recommend training m lieu of an administrative 
penalty pursuant to G.S. I3ID-34(gl ). 

(2) If the proposal is incomplete, the assistant chief shall 
contact the county d e partm e nt of social s e rvic e s to the 
agency that submitted the proposal to request 
necessary changes or additional material. 

(3) When the proposal is complete and a typ e and the 
amount of penalty determined, the assistant chief shall 
forward the proposal to the administrative penalty 
monitor for processing. If the assistant chief 
recommends training in lieu of an administrative 
penalty pursuant to G.S. 13ID-34(gI ). the 
recommendation shall be forwarded with the proposal. 

(c) The Department shall notify the licensee bv certified mail 
within 1 vv orking day s from the time the proposal is received by 
the administrative penalty monitor that an administrative penalty 
is being considered. 

(d) The licensee shall have 10 working davs from receipt of 
the notification to prov ide both the Department and the county 
department of social services anv additional information relating 
to the proposed administrative penalty . 



(e) If th e p e nalty r e comm e ndation is classifi e d as a Typ e B 
violation and is not a r e p e at violation as d e fin e d bv G.S. 13 ID 



3 ' 1. th e lic e ns ee shall b e notifi e d of th e typ e and amount of th e 
p e nalty and mav accept the r e comm e ndation inst e ad of r e vi e w 



r e comm e ndation is acc e pt e d, th e licensee must notify th e 
administrativ e p e nalty monitor bv' c e rtifi e d mail within fiv e 



proposal for submission to the Department . The proposal shall 
include a copy of the written confirmation required m G.S. 
131D-34(a)( 1 )(c) and documentation that the licensee was 
notified of the countv department of social services" or the 
Division of Facility Services" intent to prepare and forward an 
administrative penalty proposal to the Department: offered an 
opportunity to provide additional information prior to the 
preparation of the proposal: after the proposal is prepared, given 



working dav s following r e c e ipt of th e r e comm e ndation. — The 
lic e n see must includ e paym e nt of th e p e nalty with th e 



notification. If pavTn o nt is not rec e iv e d, th e r e commendation 
s hall b e forward e d to th e P e nalty Revi e w Committ ee . If a 
facility fails to correct a Tvpe A or a Type B violation within the 
time specified on the plan of c orrection, an assistant chief of the 
Group Care Licensure Section shall make a decision on the 
amount of penalty pursuant to G.S. l31D-34(b)(l) and [2j and 
submit a penalty proposal for consideration by the Penalty 



k 



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13:2U\i 



n 



PROPOSED RULES 



recommendations after review of administrative penalty 
proposals, any supporting evidence, and any additional 
information submitted by the licensee as described in Paragraph 
(d) of this Rule that may hav e a b e aring on th e propo s al such as 
months or within the tim e p e riod of th e pr e vious lic e nsur e docum e ntation not available during th e complaint inv e stigation 



Review Committee. 

{^ — The — Penalt>' R e vi e w Committee must review a 
recomm e nded p e nalt>' wh e n: it is a Typ e A violation; is a T>p e 
B violation that has boon pr e viously cit e d during th e pr e vious 1 2 



insp e ction, which e v e r tim e is longer; or is a T>p e B violation as 
provid e d in Paragraph ( e ) of this Rul e which is not acc e pt e d by 
the lic e ns ee . . 

(g) — A subcommitt ee of th e P e nalty Review Committ e e 
consisting of four committ ee m e mb e r s assigned by the Penalty 
R e vi e w Committ ee chair shall me e t to initially r e vi e w non r e p e at 
Typ e B violations. Th e P e nalty R e vi e w Committ ee chair shall 
appoint th e subcommittee chair and shall b e an e x officio 
m e mb e r of th e Penalty R e vi e w committ ee subcommitt ee . 
Provid e r s , complainants, aff e ct e d parti e s and any m e mb e r of th e 
public may att e nd this m ee ting. — Th e admini s trativ e p e nalty 
monitor shall b e r e sponsibl e for informing parti es of th e s e 
meeting dat e s with th e e xc e ption that th e ag e ncy which 
conduct e d th e complaint inv e stigation s hall b e r e sponsibl e for 
notifying th e complainant, if any. 

(h^ — Tim e shall b e allow e d during the P e nalty R e vi e w 
committ ee subcommitt ee meetings for individual pr ese ntations 
conc e rning propo s ed penaltie s . — Th e total time allowed for 
pr e s e ntation conc e rning e ach facility, the ord e r in which 
pr e s e nt e r s shall sp e ak and length of pr e sentations s hall b e 
d e t e rmin e d by th e P e nalt>' R e vi e w Committ ee subcommitt ee 
chair. 



or monitoring or sur\'ey visit, action tak e n to corr e ct the 
violation and plans to pr e v e nt the violation from r e curring, and 
the factors specified in G.S. 131D-34(c). 

ffi(h) There shall be no taking of sworn testimony ner or 
cross-examination of anyone during the course of the P e nalty 
R e vi e w Committ e e subcommitt ee or frill Penalty Review 
Committee meetings. 

fFFhKi) If the Penalty Review Committee determines that the 
licensee has violated applicable rules or statutes, the Penalty 
Review Committee shall recommend an adminisfrative penalty 
typ e and amount for each violation pursuant to G.S. 131D-34. 
Recommendations for domiciliar>' adult care home penalties 
shall be submitted to the Chief of the Domiciliary and Group 
Care Licensure Section who shall have five working days from 
the date of the Penalty Review Committee meeting to determine 
and impose administrative penalties for each violation or require 
staff training pursuant to G.S. 131D-34(gl) and notify the 
licensee by certified mail. 

(fi){jj The licensee shall have 60 days from receipt of the 
notification to pay the penalty or must file a petition for a 
contested case with the Office of Administrative Hearings within 
30 days of the mailing of the notice of penalty imposition as 
(i) Th e admini s trativ e p e nalty monitor s hall hav e fiv e working provided by G.S. 131 D-34. 

day s from th e m ee ting dat e to notify th e facility and involv e d 

parti es of p e nalty r e comm e ndations mad e by th e P e nalt>' R e vi e w Authority G.S. 131D-2; 13 1 D-34; 143B-153. 

Committ ee s ubcommitt ee with th e e xc e ption that th e ag e ncy 



Notice is hereby given in accordance with G.S. 1508-21. 2 
thai the Secretary for Health & Human Sen'ices intends to 
adopt the rule cited as 10 NCAC 49B .0315. Notice of Rule- 
making Proceedings was published in the Register on March 16, 
1998. 



which conduct e d th e complaint inv es tigation shall b e r e sponsibl e 
for notify'ing th e complainant, if any. Th e s e r e comm e ndations 
including — the — vote — of th e — P e nalt>' — R e vi e w — Committ ee 
subcommitt ee shall b e submitt e d for r e vi e w by the full P e nalty' 
R e vi e w Committ ee at a m ee ting sch e dul e d for th e following 
month. . 

(j)£fl The friH Penalty Review Committee shall consider Type 
A violations and non r e p e at Type A and Type B violations 

r e f e rr e d by th e P e nalty R e view Committ ee s ubcommitt ee , that Proposed Effective Date: April 1, 1999 
have not been corrected within the time frame specified on the 
plan of correction. Providers, complainants, affected parties and 
any member of the public may attend fuH Penalty Review 
Committee meetings. Upon written request of any affected party 
for reasons of illness or schedule conflict, the department may 
grant a delay until the following month for Penalty Review 
Committee review. The Penalty Review Committee chair may 
ask questions of any of these persons, as resources, during the 
meeting. Time shall be allowed during the meeting for 
individual presentations which provide pertinent additional 
information. The order in which presenters speak and the length 
of each presentation shall be at the discretion of the Penalty 
Review Committee chair. 

{k)tg] The Penalty Review Committee and th e P e nalty 
R e view Committ ee subcommittee shall have for review the 
entire record relating to the penalty recommendation 
r e commendation. Th e P e nalty R e vi e w Committ ee and th e P e nalty 
Review — Committee — subcommitt ee and shall make 



A Public Hearing will be conducted at 10:00 a.m. on 
September 9. 1998 at the Albermarle Building, Room 943-2, 325 
North Salisbury Street, Raleigh, NC 27603. 

Reason for Proposed Action: P.L 104-193 changed the face 
of welfare for all states. The most fundamental change was to 
establish the Temporary Assistance for Needy Families (TANF) 
Block Grant. In addition to other requirements, the law 
mandated stricter work participation rates than had been in 
place under prior law. For FY 1998, 75% offamilies with two 
able-bodied parents must be working or participating in a 
countable work activity an average of 35 hours per week (or 55 
hours if child care is provided). The participation rate was 50% 
under prior Ian: Further, states who fail to meet this two-parent 
participation rate stand to lose part of their Temporary 
Assistance for Needy Families (TANF) Block Grant. This could 



13:2 



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July 15, 1998 



203 



PROPOSED RULES 



be approximately S15 million in \orth Carolina although 
proposed federal regulations may soften this sanction slightly by 
stating the fiscal sanction would be in the same ratio that two- 
parent families are of the total Work First families. Two-parent 
families make up slightly over 2% of the State's total Work First 
families. So. in North Carolina, the sanction would be 
approximately 2% of the 5% fiscal sanction. 

Comment Procedures: .Anyone wishing to comment should 
contact Sharnese Ransome. AP.4 Coordinator. A'C Division of 
Social Ser\ices. 325 A'. Salisbury Street. Raleigh, A'C 2 '603. 
phone (919) -33-3055. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars (S 5. 000. 000 1 In a 12-month period. 

CHAPTER 49 - AID TO FAMILIES WITH 
DEPENDENT CHILDREN (AFDC) 

SUBCHAPTER 49B - EMERGENCY ASSISTANCE 

SECTION .0300 - ELIGIBILITY FACTORS 

.0315 TWO-PARENT FAMILIES 

(a) Assistance Units with r^so able-bodied parents shall be 
eligible to recei\e cash assistance onK for months during which 
the parents meet the federal uork participation requirement as 
described in Section 407 of Public Law 104-193 which is herebs 
adopted b\ reference under G.S. 150B-14(c). 

(b) The parents shall NerilA as prescribed by the State, that 
the% ha\e satisfied the federal work requirement, if the 
assistance unit is otherwise eligible for a paNment. the pa\ment 
shall be made uithin fi\e calendar da\ s of the date the county 
receives the parentis verification. 

(c) The amount of the cash assistance pa\ment shall be 
calculated for the month as it is for ail other assistance units. 

.Authorir\-G.S 108.4-25: SL 199'-443: P.L. 104-193. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

Notice is hereby given in accordance with G.S. 150B-2 1.2 
that the Water Pollution Control System Operator 
Certification Commission intends to adopt the rules cited as 15.4 
\C.4C 8G .0101-.0102. .0201-.0205. .0301-.0308. .0401-.0409. 
.0501:0505. .0601-.0604. .O'Ol. .0801-.0804. .0901-.0902. 
. 1001-. 1002. and . 1101-. 1102 and repeal the rules cited as 15.4 
NC.4C 8.4 .0101. .0202. .0301-.0303: 15.4 \'C.4C 8B .0101- 
.0106. .0108-.0109. .0201-0205. .020~-.0214. .0301-.0304, 
.0402. .0404-.0406. .0502-0506: 15.4 NC.4C 8C .0002. .0004- 
.0008: and 15.4 \C.4C 8D .0002. .0004-. 0006. Notice of Rule- 
making Proceedings was published in the Register on March 24. 
199'.^ 



Proposed Effective Date: .4pril 1. 1999 

A Public Hearing will be conducted at '':00 p.m. on July 30. 
1998 at the .4rchdale Building. Groundfloor Hearing Room. 512 
S. Salisbury Street. Raleigh. .\C: at -:00 p.m. on .4ugust 11. 
1998 at the .4sheville-Buncombe Tech. Comm. College, Laurel 
.4uditorium. 340 I'ictoria Road. .Asheville. NC: and at -:00 p.m. 
on .4ugust 13. 1998 at the City Hall .4uditorium. 1 Hatteras 
.4venue. Havelock. \'C. 

Reason for Proposed Action: Multiple changes to the rules of 
the Water Pollution Control Systems Operator Certification 
Commission over the past se\'eral years ha\-e left the rules 
someivhat unorganized. In addition, recent legislation allows 
the Commission to require the completion of continuing 
education for certification renewal. These issues, as well as 
observations from the staff and Commission to make several 
minor changes to the rules, licn'e prompted the proposed action. 

Comment Procedures: Public comment Mill be accepted 
during the comment period by Bo McMinn. Division of Water 
Quality. WPCSOCC. PO Box 29535. Raleigh. \C 2-626-0535. 

Fiscal Note: These Rules. 15.4 \C.4C 8G.0201. .0204. .0306. 
.0402 and .O-Ql do affect the expenditures or revenues of local 
and State funds. 

Fiscal Note: Tftese Rules. 15.4 .\C.4C 8G .0101-.0102. .0202- 
.0205. .0301 -.0308. .0401. .0405-.0409. .0501 -.0505. .0601- 
.0604. .0801-.0804. .0901-.0902. .1001-.1002. .1 lOl-.l 102 do 
not affect the expenditures or revenues of local or State funds. 

Fiscal Note: These Rules do not have a substantial economic 
impact of at least five million dollars lS5.000.000j in a 12-month 
period. 

CHAPTER 8 - WATER POLLUTION CONTROL 

SYSTEM OPERATORS CERTIFICATION 

COMMISSION 

SUBCHAPTER 8A - AUTHORITY: ORGANIZATION: 

STRUCTURE: DEFINITIONS AND HEARING 

PROCEDURES 

SECTION .0100 - DEFINITIONS AND 
ORGANIZATION 



.0101 



DEFINITIONS 



(a) "C e rtification Commi s sion" is th e Wat e r Pollution Control 



S>stem Op e rators C e rtification Commission cr e at e d b> G.S 
1 4 36 300. 



(b) "Conditional Certificat e " is a p e rman e nt certificat e issu e d 
b\ th e C e rtification Commission to an indi\ idual as th e r e sult of 



passing an e xamination administ e r e d bv the Certification 
Commission and which i s \alid onK for a sp e cifi e d tspe and 



grad e of wat e r pollution control s>st e m. — It is subject to th e 
provisions of G.S. 90y\ ' 10(a). 



fe^ — "Contract Op e ration Firm" is ans comm e rcial Neat e r 



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13:2 



PROPOSED RULES 



pollution control system op e ration firm contracting with wat e r 
pollution control syst e ms pur s uant to G.S. 90A '15(a). 

(4) — "Op e rator in Responsibl e Charg e " is th e op e rator 
designat e d to fulfill the r e quir e m e nts of G.S. OOA I 'l . 

( o ) "Owner" is that p e rson, firm, or corporation d e scrib e d in 
G.S. 90A 11. 

(f) "P e rman e nt Certificat e " is that c e rtificat e of comp e t e nc e 
and e xp e rienc e issu e d by th e C e rtification Commission to an 
individual a s th e r e sult of pas s ing an e xamination administ e r e d 
by the C e rtification Commission or issu e d by th e C e rtification 
Commission by reciprocity. It is subj e ct to th e provi s ion s of 
G.S. 90A 1Q(a). 

(g) "Reciprocity C e rtificat e " is that c e rtification allow e d und e r 
G.S. 90A 10(b). 



(h) "T e mporary C e rtificate" is that c e rtificat e issu e d to an 
individual by th e C e rtification Commission wh e n th e conditions 
ofG.S. 90A ■4 0(e) are m e t. 

(i) "Wat e r Pollution Control Syst e m" is any facility classifi e d 
und e r th e provisions of G.S. 90A 37. 



Authority G.S. 90A-37: 
143B-300: 150B-2(4). 



90A-38: 90A-40: 90A-44: 90.4-45: 



SECTION .0200 - GENERAL PURPOSE: DUTIES 
AND REQUIREMENTS: AND PROGRAMS 

.0202 DUTIES AND REQUIREMENTS 

(a) R e funding of F ee s. — Wh e n r e funding of f ee s b e com es 
n e c e ssary, it will b e th e Commission's r e sponsibility or th e 
r e sponsibility of th e ir d e sign ee to d e t e rmin e th e f ee s or portion 
of f ee s to b e r e fund e d in accordanc e with 1 5 A NCAC 8 B .0502. 

(b) R e quir e m e nts for C e rtifi e d Op e rators of Syst e ms 
P e rmitt e d — Und e r — Rul e s — Adopt e d — by — (he — Environm e ntal 
Manag e m e nt Commission . 

{4^ Th e own e r must submit a letter to the Certification 
Commission which either d e signat e s th e Operator in 
R e sponsibl e Charge and is counter s ign e d by this 
op e rator or th e Contract Op e ration Firm which ha s 
b ee n engag e d to provide operational s e rvic e s and i s 
count e rsigned by th e firm. If a Contract Op e ration 
Firm has be e n engag e d, th e Contract Op e ration Firm 
must submit a lett e r to th e C e rtification Commi ss ion 
which d e signates th e Op e rator in R e sponsibl e Charg e 
and is count e rsign e d by both th e own e r and th e 
d e sign e d op e rator. — This (th e s e l e tt e r( s ) mu s t b e 
submitted within 30 days aft e r: 

(A) a n e w wat e r pollution control syst e m is 50 
p e rc e nt compl e t e d . 

(B) notification of cla s sification or chang e of 
classification of an e xisting syst e m has b ee n 
r e c e iv e d: or 

(€4 a n e w op e rator in r es ponsibl e charg e — is 
d e signat e d. 
(3) Own e rs of faciliti e s, oth e r than s ingl e family syst e m s , 
ar e r e quir e d as of Octob e r 1. 1991 to provid e an 
appropriat e ly train e d and certified back up op e rator of 
th e appropriat e typ e and any grad e , to s e rv e a s 
surrogate for th e ORC s e t forth in Paragraph (c)(5)(B) 



and (C) of this Rul e when th e ORC is unavailabl e du e 
to illn e s s or vacation, not to e xc ee d 60 day s if the 
back up op e rator hold s a certificat e of a low e r grade 
than th e classification of th e facility and 90 days if th e 
back up op e rator holds a c e rtificat e of th e s ame grade 
as th e cla ss ification of th e facility. If th e abs e nce of 
th e ORC will exc e ed thi s tim e p e riod, a n e w ORC of 
th e appropriat e typ e and grad e must bo designat e d for 
th e syst e m. If th e abs e nc e of th e ORC is subject to 
con s id e ration du e to th e Family L e av e Act. this p e riod 
s hall bo extended to 120 day s but mu s t b e r e port e d to 
th e Commission in writing. Th e own e r must s ubmit 
a l e tt e r to th e C e rtification Commi ss ion which e ith e r 
d e signat e s th e back up op e rator and is count e r s ign e d 
by this op e rator or which d e signates th e Contract 
Op e ration Firm which has b ee n e ngag e d to provid e 
op e rational s e rvic e s and is count e rsign e d by th e firm. 
If a Contract Op e ration Firm has b ee n e ngag e d, th e 
Contract Op e ration Firm must submit a l e tt e r to th e 
C e rtification — Commission which — d e signat e s th e 
back up op e rator and is count e r s ign e d by both th e 
own e r and th e d e signat e d op e rator. — This (th e s e ) 
l e tt e r(s) mu s t b e submitt e d within 30 days aft e r : 
(A) th e s yst e m is classifi e d; or 
fB) a n e w back up op e rator is d e signated . 
(3^ Th e ov ^ Tl e r must inform th e C e rtification Commission 
in writing wh e n: 

(A) an — individual — form e rly d e signat e d as th e 
Op e rator in R e sponsibl e Charg e or th e back up 
op e rator is no long e r s e rving as th e ORC or th e 
back up op e rator: or 

(B) a Contract Op e ration Firm form e rly d e signat e d 
te — be — r e sponsibl e — fef — op e ration — and 
maint e nanc e is no long e r providing th e ORC or 
th e back up op e rator. 

(4) A Contract Op e ration Firm i s r e quir e d to inform th e 

C e rtification Commi s sion in writing within 30 days 

wh e n : 

(tA) an individual — form e rly d e signat e d a s th e 
Op e rator in R e sponsibl e Charg e or th e back up 
op e rator is no long e r se rving as th e ORC or th e 
back up op e rator; or 

(B) a Contract Op e ration Firm form e rly d e signat e d 
(e — be — r e sponsibl e — for th e — op e ration — and 
maint e nanc e is no long e r providing th e ORC or 
th e back up op e rator. This l e tt e r shall indicat e 
the dat e of th e chang e in th e status of th e 
Op e rator in R e sponsibl e Charg e or back up 
op e rator th e Contract Op e ration Firm and th e 
nam e of th e n e w d e sign ee. 
(^ In ord e r to qualify' as th e Op e rator in Responsibl e 

Charg e of a particular, wat e r pollution control syst e m. 

an op e rator: 

(A) must poss e ss on e . or mor e of the c e rtificat e s 
list e d in S e ction .0200 of thi s Subchapt e r, of 
th e typ e (s) and grad e ( s ) at lea s t equival e nt to 
th e typ e s and cla ss ification(s) of th e s y s t e m; 

(B) must, if th e d es ignated ORC of a wast e wat e r 



\13:2 



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July 15, 1998 



205 



PROPOSED RULES 



{€) 



tr e atm e nt facility, b e r e spon s ibl e for. and a s of 
Octob e r 1 . — 1991. mu s t visit e ach cla ss I 
wast e wat e r — tr e atm e nt — facilitv' — aftd — s pray 
irrigation facility at l e a s t weekly, and e ach 
class 11. cla s s III and cla ss IV wa s t e wat e r 
tr e atm e nt facility' at l e ast fiv e days p e r w ee k, 
e xcluding holidays, with th e e xc e ption of 
singl e family — s yst e ms. — i nclud i ng — A e robic 
Tr e atm e nt Units (ATU' s ) with a flow of up to 
1 .500 gallon s p e r day of dom es tic wast e wat e r, 
which shall b e vi s it e d w ee kly and oth e r 
cla ss ifi e d singl e family s yst e ms which shall b e 
vi s it e d a minimum of annually; and shall 
docum e nt visits to th e facility; and 
{Q^ mu s t prop e rly manag e and docum e nt daily 
op e ration and maint e nanc e , c e rtify' monitoring 
and r e porting information a s pr e scrib e d in th e 
p e rmit, and r e sid e within r e asonabl e proximity 
of th e — syst e m, to b e r e adily availabl e for 
con s ultation, e m e rg e nci e s, r e gulator)' ag e ncy 
insp e ction and similar matt e rs; and 
(&) may b e an e mploy e e of a Contract Op e ration 
Firm s o long as this e mploy ee m ee ts all 
r e quir e m e nts in Paragraphs (c)(5)(A). (B) and 
(Oof this Rul e . 
R e quir e ments for C e rtifi e d Op e rator s of Syst e m s 



P e rmitt e d Und e r Rul e s Adopt e d by th e Commission for H e alth 

S e rvic e s or a local board of h e alth . 

fH Th e own e r shall s ubmit a l e tt e r to th e local h e alth 
d e partm e nt s e rving th e county in which th e s yst e m is 
locat e d which e ith e r d e signat e s th e Operator in 
R e sponsibl e Charg e and is count e rsign e d by this 
op e rator, or d es ignat es a Contract Op e ration Firm or 
Public Manag e m e nt Entit>'. which has b ee n e ngag e d 

to provid e op e rational s e rvic es . If a Contract 

Op e ration Firm or Public Manag e m e nt Entitv' has 
b ee n e ngag e d, th e Contract Op e ration Firm or Public 
Manag e ment Entity mu s t s ubmit a l e tt e r to th e local 
h e alth d e partm e nt which d e signat e s th e Op e rator in 
R e sponsibl e Charg e and is count e rsign e d by both th e 
own e r and th e designated op e rator. — This (th e s e ) 
letter(G) must b e r e c e iv e d prior to th e issuanc e of th e 
op e ration p e rmit or within 30 days of: 
{A) notification of classification or chang e of 
classification of an e xi s ting syst e m ha s b ee n 
r e c e iv e d; or 
f&) a n e w op e rator is d e signat e d . 
(3) Own e rs ar e r e quir e d to provide an appropriat e ly 
train e d — afid — c e rtifi e d — back up — op e rator — of th e 
appropriat e tv'p e and any grad e for any classifi e d 
wastewat e r tr e atm e nt plant, with th e e xc e ption of 
A e robic Tr e atm e nt Units, to s e rv e as surrogat e for the 
ORC a s s e t forth in Paragraph (d)(5)(B) and (C) of 
thi s Rul e wh e n th e ORC is unavailabl e du e to illn e ss 
or vacation, not to exceed 60 day s if th e back up 
op e rator holds a c e rtificat e of a low e r grad e than th e 
classification of th e facility' and 90 days if th e back up 
op e rator hold s a c e rtificat e of th e sam e grad e as the 



cla ss ification of th e facility. — If the abs e nc e of the 
ORC will exc ee d thi s tim e p e riod, a new ORC of the 
appropriate typ e and grad e must b e designat e d for the 
system. — If th e abs e nc e of th e ORC is subj e ct to 
consideration du e to th e Family Leave Act, this p e riod 
s hall b e e xt e nd e d to 120 days but must b e r e port e d to 
th e Commis s ion in writing. Th e owner must submit 
a l e tt e r to th e local h e alth d e partment which e ith e r 
d e signat e s th e back up op e rator and is count e rsign e d 
by this op e rator or which designat e s th e Contract 
Op e ration Firm or Public Manag e m e nt Entity which 
has b ee n e ngag e d to provide op e rational s e rvices and 
is count e rsigned by th e firm. 
(^ Own e rs ar e r e quir e d to inform th e local h e alth 
d e partm e nt in writing wh e n: 

(A) an individual form e rly d e signated as th e ORC 
or th e back up operator (if r e quir e d) is no 
long e r s e rving a s th e ORC or th e back up 
op e rator; or 

(B) a — Contract — Op e ration — F4fm — or — Public 
Manag e m e nt Entity, formerly designat e d to b e 
r e spon s ible for op e ration and maint e nanc e is 
no long e r providing th e ORC or th e back up 
op e rator. 

(4) A Contract Op e ration Firm or Public Manag e m e nt 

Entity' must notify' th e local h e alth d e partm e nt in 

writing within 30 days wh e n: 

(tV) an individual form e rly d e signat e d as th e ORC 

or back up op e rator (if r e quir e d) is no long e r 

p e rforming th e s e duti e s; or 

(B) a — Contract — Op e ration — F4Fffl — ef — Public 

Manag e m e nt Entity form e rly d e signat e d to b e 

r e sponsibl e for op e ration and maint e nanc e is 

no long e r providing th e ORC or th e back up 

op e rator. Thi s l e tt e r s hall indicat e th e dat e of 

th e chang e in statu s of th e ORC or th e back up 

op e rator (if r e quir e d) or th e Contract Op e ration 

Firm or Public Manag e ment Entitv and th e 

nam e — of th e — new — d e sign e e — er — Contract 

Op e ration Firm or Public Manag e m e nt e ntit>', 

countersigned by th e n e w ORC or back up 

op e rator (if r e quir e d). 

f5) In ord e r to qualify' as Op e rator in R es ponsible Charg e 



of a particular syst e m an op e rator: 

(A) mu s t po s s e s s on e , or mor e of th e c e rtificat e s 



list e d in S e ction .0200 of this Subchapt e r, of 
th e typ e (s) and grad e ( s ) at l e ast e quivalent to 



the t>'p e (s) and clasGification( s ) of th e s y s t e m. 
(&) must bo responsibl e for and must vi s it e ach 



syst e m as sp e cifi e d in 15A NCAC 1 8 A .1961 



Th e ORC mu s t prop e rly manag e and docum e nt 
op e ration and maint e nanc e ; certify' monitoring 



and r e porting information as pr e scrib e d in th i 



p e rmit and r e sid e within r e asonable proximity 
of the syst e m to b e r e adily availabl e foi 



^ 



consultation, e merg e nci e s, r e gulatory ag e nc> 

insp e ctions and s imilar matt e rs; and 

mu s t, if th e d e signated ORC of a wastcwat e il 



; 



206 



NORTH CAROLINA REGISTER 

H 



Juh- 15, 1998 



13 



PROPOSED RULES 



treatm e nt facilih' that is classifi e d as a Clas s II, 
Class III or Clas s IV vvastowator tr e atm e nt 
facilit>'. must visit each Class II. Class 111 and 
Class IV facility' at l e ast fiv e day s per week, 
e xcluding holidays. A e robic Tr e atm e nt Units 
(ATU's) that ar e u s ed as pr e tr e atm e nt for 
subsurfac e disposal of dom e stic wast e wat e r 
with a design flow of up to 1,500 gallons p e r 
day s hall b e visit e d by th e ORC on a monthly 
basis. — Th e ORC shall docum e nt th e visits c e rtification as a wat e r pollution control syst e m op e rator by way 



SUBCHAPTER 8B - CERTIFICATION OF 
OPERATORS 

SECTION .0100 - APPLICATION FOR EXAMINATION 

AND CERTIFICATION: AND NOTIFICATION 

OF CHANGE IN ADDRESS 

.0101 APPLICATION FORM 

(a) An application which i s d e sign e d for r e qu e sting 



mad e to e ach facility. 
Authority G.S. 90A-3 7 through 90A-43; 143B-300. 

SECTION .0300 - HEARING PROCEDURES 

.0301 RULE MAKING PROCEDURES 

The Wat e r Pollution Control System Op e rators C e rtification 
Commission incorporat e s by reference 15A NCAC IB .0100 for 



the purpos e of its rul e making proc e dur e s. 
Authority G.S. 143B-300. 

.0302 CONTESTED CASE PROCEDURES 

(a) Admini s trativ e h e arings shall b e h e ld in accordanc e with 



of e xamination, t e mporary certification, reciprocity c e rtification, 
conditional — c e rtification, — ef — conv e rsion — frem — voluntary 
c e rtification must b e prop e rly and accurat e ly compl e t e d and 
submitt e d with th e appropriat e f ee to th e offic e of th e chairman 
of th e C e rtification Commission. 

(b) Incompl e t e application s and applications not accompani e d 
by appropriat e f ee and attachm e nts cannot b e proc esse d and will 
b e r e turn e d to th e applicant. 

Authority G.S. 90A-39: 90A-42: 143B-300. 

.0102 APPLYING FOR EXAMINATION 

(a) An application being fil e d for e xamination shall b e 
po s tmark e d by th e Unit e d States Postal Ser\'ic e at l e ast 30 days 
prior to th e dat e upon which the examination is sch e dul e d to b e 



G.S. 150B. and th e administrativ e h e aring proc e dur e s codifi e d administ e r e d and th e appropriat e f ee must accompany th e 
at 15A NCAC IB .0200 e t seq.. ar e h e r e by incorporat e d by application . 



r e f e r e nc e including any subs e qu e nt am e ndm e nts and additions 



fb) Upon r e c e ipt of th e application by the Commission, th e 



(b) Copi es of 15A NCAC 1 B .0200 may b e insp e ct e d at th e application will b e r e vi e wed by the designoe(s) of th e 

offic e s of th e Division of Planning and Ass e ssm e nt. 512 North Commission for e ligibility to tak e the examination. — The 

Sali s bury Str ee t. 8 th Floor. Archdal e Building. Ral e igh. North applicant will b e notifi e d by l e tt e r of th e ir e ligibility and will b e 

Carolina — 2761 1. — Copi e s may b e obtain e d at th e pr e vious advis e d of th e dat e , tim e and plac e of th e e xamination. A receipt 

location or from the Rules Division of th e N.C. Offic e of for th e e xamination f ee will accompany th e l e tt e r. — In cas e s 



Admini s trativ e H e aring s at a co s t s e t by thos e offic e s. 



Authority G.S 143B-300: 150B-2(4). 



.0303 

(a) 
am e ndm e nt, or r e p e al of a rul e may mak e s uch r e qu es t in a 



PETITIONS FOR REGULATORY ACTIVITY 

Any p e r s on( s ) d e siring to r e qu e st th e adoption. 



wh e r e th e applicant is in e ligibl e for e xamination, th e applicant 
will also b e notifi e d by l e tt e r and advis e d th e r e a s on for 
in e ligibility. Th e e xamination f ee will b e r e funded in the event 
that th e applicant is d e t e rmin e d to b e in e ligibl e for th e 
examination. Upon l e arning of in e ligibility, th e applicant may 
r e qu e st a h e aring b e for e th e c e rtification Commission at th e n e xt 
r e gularly scheduled m ee ting, r e lativ e to th e in e ligibility, if th e 



p e tition fil e d pur s uant to G.S. 150B 20, addr e ss e d to th e Wat e r applicant so d e sir e s. Such r e qu e sts must b e in writing and shall 
Pollution Control Syst e m Op e rator s C e rtification Commission b e s ubmitt e d at l e a s t 30 days prior to th e n e xt r e gularly 
and mailed to the Chairman, at P.O. Box 29535. Ral e igh. North 

■)i f, -i 



s ch e dul e d meeting. Any applicant who int e ntionally suppli e s 
Carolina. 27626 0535. Such p e tition s shall contain th e fal se information on th e application for c e rtification for th e 



following information: 

(44 A draft of th e propo se d rul e or a summary of its int e nt. 
(3) R e a s on s for adoption of th e propos e d rul e ( s ) and 

e ffect on e xisting rul e s and practic e s. 
(5) Nam e and addr es s of th e p e tition e r(s). 
fb) P e titions will b e plac e d on th e ag e nda of th e n e xt 
r e gularly sch e dul e d meeting of th e Commis s ion if r e c e iv e d at 



purpo se of gaining e ligibility, will b e in e ligibl e for th e 
e xamination and will forf e it th e e xamination f ee . Applicants 
who hav e int e ntionally s uppli e d fals e information and who hav e 
b ee n d e t e rmin e d to b e ineligible who wish to r e apply for 
c e rtification s hall follow th e proc e dur e set forth in 1 5 A NCAC 
8 D .0006. 



l e ast four w ee ks prior to the m e eting. Th e Chairman will Authority G.S. 90A-39: 90A-42; 143B-300: 150B-23. 
pr e pare — r e comm e nd e d — r e spon s es — te — p e tition s — for — the 



Commission's consid e ration. — P e titions will b e consid e r e d in 
accordanc e with th e r e quir e m e nts of G.S. 150B 20. 



Authority G.S. 113-134: 143B-289A: 150B-20. 



.0103 APPLYING FOR TEMPORARY 
CERTIFICATION 

An application must b e fil e d with appropriat e fee and r e quir e d 
l e tt e r or stat e m e nt from th e own e r of th e facility. 



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NORTH CAROLINA REGISTER 



July 15, 1998 



207 



PROPOSED RULES 



Authority G.S. 90A-39; 90A-42: 143B-300. 

.0104 APPLYING FOR TEMPORARY 
CERTIFICATION RENEWAL 



regulation s r e lat e d to wa s t e wat e r tr e atm e nt plant op e ration and 
knowledge of equipment usually e mploy e d in such plants, and 
be able to d e scribe the general maint e nance r e quirem e nts for 
such plant units. — Th e applicant mu s t submit an application 



An application r e qu e sting r e n e wal of t e mporary c e rtification showing that one of the following prer e qui s it e combinations of 

training and experience has been met in ord e r to tak e th e grad e 
1 e xamination: 



must b e filed 60 days prior to th e e xpiration dat e of th e original 
t e mporary c e rtification. Th e appropriate fe e and requir e d l e tt e r 
or stat e ment from th e own e r of th e facility must accompany th e 
application. 



Authority- G.S. 90A-39: 90.4-42: I43B-300. 

.0105 APPLYING FOR CERTIFICATION BY 
RECIPROCITY 



An application r e qu e sting c e rtification by r e ciprocity mu s t b e year oi acc e ptt 

fil e d with th e appropriat e f ee and a copy of th e c e rtificat e of plant op e ration 



f4-) thr ee y e ars of acceptable e xp e ri e nc e in wast e wat e r 

tr e atm e nt plant operation ; 
(3) compl e tion of e ighth grad e of s chool and two y e ars of 

acc e ptabl e e xp e ri e nc e in wast e wat e r tr e atm e nt plant 

op e ration; 
{¥) satisfactory compl e tion of a Grad e 1 approv e d training 

school for wast e wat e r tr e atm e nt plant op e rators and on e 

year of acc e ptable e xp e ri e nc e in wastewater treatment 



r e gi s tration issued by th e Association of Board s of C e rtification 

Authority G.S. 90A-39; 90A-40(b); 90A-42. 

.0106 APPLYING FOR CONDITIONAL 
CERTIFICATION 



(4) graduat e of a high s chool, or e quival e nt GED. and thre e 

months of acc e ptabl e e xp e ri e nc e in wast e wat e r tr e atm e nt 

plant op e ration; 
{%) graduat e of a high school or e quival e nt GED or a two or 

four y e ar coll e g e and s ucc ess ful completion of approved 

training school. 
An application r e questing a conditional c e rtificat e must b e fil e d Provid e d, how e v e r, that if an applicant fail s th e Grad e I 



with th e appropriat e f ee and l e tt e r or stat e m e nt r e quir e d of th e 
owner of the facility. 

Authority G.S 90A-39: 90A-42(4): 143B-300. 

.0108 ADDRESS FOR REQUESTING AND 
RETURNING APPLICATIONS 

Applications ar e obtainabl e from and shall b e r e turn e d to: 
Chairman. — Wat e r — Pollution — Control — Sy s t e m — Op e rators (a) An applicant for a grade 11 certificat e shall b e e xp e ct e d to 

C e rtification Commission, D e partm e nt of Environm e nt, H e alth, have a g e neral loiowl e dg e of th e various typ e s of wast e wat e r 
and Natural R es ourc e s, P.O. Box 29535, Ral e igh, North 
Carolina 27626 0535. 



e xamination aft e r thr ee att e mpts, th e applicant must th e n 
satisfactorily compl e t e a Grade 1 approv e d training school b e for e 
taking th e Grad e 1 e xamination again. 

Authority G.S. 90A-39: 1438-300. 

.0202 GRADE II WASTEWATER TREATMENT 
PLANT OPERATOR 



tr e atm e nt plants and th e proc e ss e s — involv e d; — a g e n e ral 
knowl e dg e of th e compo s ition of wast e wat e r and th e prop e r 
sampling th e r e of; a g e n e ral Icnowl e dge of the proc e dur e involv e d 
in making basic physical and ch e mical t e sts and their application 
to tr e atm e nt plant control and Icnowl e dg e of the laws and 
regulations r e lat e d to wast e wat e r tr e atm e nt plant op e ration; th e 

_ ability to make simpl e calculations; general knowl e dg e of th e 

Hold e rs of c e rtificat e s und e r this program s hall notify' th e prop e r maint e nanc e of the various tr e atm e nt plant units and th e 
Chairman. — Wat e r — Pollution — Control — Sy s t e m — Op e rators m e chanical e quipm e nt involved; th e ability to k e ep and interpr e t 



Authority G.S 90A-39: 90.4-42: 143B-300. 

.0109 REQUIREMENT FOR NOTIFICATION OF 
CHANGE IN ADDRESS 



Certification Commission. D e partm e nt of Environm e nt. H e alth, 
and Natural Resourc e s. P.O. Box 29535. Ral e igh. North 
Carolina 27626 0535. in writing, within 30 days of any chang e 
in addr e s s . 



Authority^ G.S 90A-35: 90.4-43: I43B-300. 

SECTION .0200 - EDUCATION AND EXPERIENCE 

FOR CERTIFIED WATER POLLUTION 

CONTROL SYSTEM OPERATORS 

.0201 GRADE I WASTEWATER TREATMENT 
PLANT OPERATOR 

An applicant for a grad e 1 c e rtificat e (low e st) shall bo expect e d 
to hav e a g e n e ral knowl e dg e of th e op e ration of s mall treatment 
plants. — Th e applicant shall hav e loiowl e dg e of th e laws and 



r e cords; the ability to practic e saf e ty and maintain good public 
r e lations; and such oth e r information a s may b e d ee m e d 
p e rtin e nt by th e Wat e r Pollution Control System Op e rators 
Certification Commis s ion. 

(b) The applicant must s ubmit an application showing that 
on e of the following pr e r e quisit e combinations of training and 
e xp e ri e nc e ha s b e en m e t in ord e r to take th e grad e II 
examination: 

(4) satisfactory completion of a Grad e II approv e d 
training — s chool — for wastewat e r tr e atm e nt — piant 
operators and two y e ars of acc e ptabl e experienc e in a 
North Carolina class I. or equival e nt, wastewat e r 
tr e atm e nt plant or high e r; 
(3) a North Carolina grad e 1 c e rtificat e with all requir e d 
r e n e wal fees paid, or e quivalent, and one year of 
acc e ptabl e op e rator e xp e ri e nc e in a North Carolina 



208 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



class 1. or equival e nt, wast e wat e r tr e atm e nt plant or 

high e r; 
(5) graduat e of high s chool, or e quival e nt GED, and six 

months of acc e ptabl e e xp e ri e nc e in a North Carolina 

class 1. or e quival e nt, wast e wat e r tr e atment plant or 

higher; 
(4) graduat e of a r e cogniz e d two y e ar coll e g e or t e chnical 

school or coll e g e or univ e rsity' and s ix month s of 

acc e ptabl e — e xp e ri e nc e — m — wa s t e wat e r — treatment 

operation. 
Provided, how e v e r, that if an applicant fails th e Grad e II 
examination aft e r thr ee att e mpts, th e applicant must th e n 
satisfactorily complete a Grad e II approv e d training school 
b e for e taking th e Grade II e xamination again. 



(^ two year s of coll e g e or associat e d e gr e e with 
acad e mic pr e paration in ch e mistry, biology, public 
h e alth, or r e lat e d fi e lds, and two y e ars of acceptabl e 
e xperienc e in a North Carolina class II, or e quivalent, 
wast e wat e r tr e atm e nt plant or high e r; 

f4) graduat e of a r e cogniz e d two year colleg e or t e chnical 
s chool, with an associat e d e gr ee in environmental 
science s , and 1 8 months of acc e ptabl e e xp e ri e nce in 
a North Carolina cla s s II, or e quival e nt, wast e wat e r 
tr e atm e nt plant or higher; 

{#) graduat e of a r e cogniz e d coll e ge or univ e r s ity with a 
major in natural or physical scienc e s, e ngin e ering or 
r e lat e d fi e ld, and on e y e ar of acc e ptabl e exp e rience in 
a North Carolina class II or e quival e nt wastewater 
tr e atm e nt plant or high e r. 



Provided, however, that if an applicant fails th e Grad e III 
examination after thre e att e mpt s , th e applicant must th e n 
s ati s factorily compl e t e a Grad e 111 approv e d training school 
b e for e taking the Grad e III e xamination again. 



Authority G.S. 90A-39: 143B-300. 

.0203 GRADE III WASTEWATER TREATMENT 
PLANT OPERATOR 

(a) An applicant for a grad e III certificat e shall be e xp e cted 
to b e mor e knowl e dg e abl e , and to hav e th e ability to answer Authority G.S. 90A-39: 143B-300. 
mor e highly s p e cializ e d qu es tions relativ e to wastewater 
tr e atm e nt and plant operation than an applicant for a grad e II .0204 
c e rtificat e . — In addition to th e requir e ments mention e d for a 
grad e II c e rtificat e , a candidate for a grade III certificat e should (a) An applicant for a grade IV c e rtificat e (high es t) s hall b e 

hav e a gr e at e r knowledge of the physical, ch e mical and expect e d to hav e more specific loiowl e dg e cov e ring th e e ntir e 
bact e riological t e st s ordinarily perform e d in an ad e quately fi e ld of wa s t e wat e r tr e atm e nt than th e applicant for a grad e III 
e quipp e d laboratory for th e d e t e rmination of the nature, typo and c e rtificat e . Th e applicant s hould hav e mor e advanc e knowl e dg e 
concentration of variou s wa s t e wat e r s . Th e applicant should b e 
able to p e rform mor e advanc e d calculations including v e locity 



GRADE IV WASTEWATER TREATMENT 
PLANT OPERATOR 



of th e d e sign and con s truction of wast e wat e r tr e atm e nt faciliti e s 
as w e ll as mor e advanc e d loiowl e dg e of th e ch e mi s try and 

of flow and pr e s s ur es in pip e s, e tc.. and should hav e a d e tail e d biology involv e d in th e variou s proc e ss e s of wast e wat e r 

Icnowl e dg e of th e principl es of tr e atm e nt plant op e ration. tr e atm e nt. — Th e applicant should b e familiar with various 

e ffici e nci es , corrosion and it s pr e v e ntion, and th e prop e r industrial wast e s and know how to m e asur e flow, sampl e and 

maint e nanc e of all it e ms of e quipm e nt in a wast e wat e r tr e atm e nt run th e common physical, ch e mical and bact e riological t e sts 

plant. Th e applicant s hould b e familiar with various typ e s of n e c e ssary' to provid e th e prop e r pr e treatment or tr e atm e nt 

pumps commonly us e d in wast e wat e r tr e atm e nt plants and th e ir th e r e of Th e applicant should hav e a good Icnowl e dg e of th e 

advantag es and di s advantag e s, and b e abl e to calculat e pump proper op e ration and maint e nanc e of the various units in a 

e fficiencies. Th e applicant should Icnow of th e probl e ms cr e at e d modem wastewater treatment plant including pumps, motors, 

by industrial wa s t e s and th e ir e ff e ct on th e s e w e rs, tr e atm e nt and el e ctrical equipm e nt. Th e applicant s hould b e familiar with 

plant, and r e c e iving str e am. Th e applicant should b e abl e to n e w d e v e lopm e nt s in th e fi e ld of wast e wat e r treatm e nt and 

measure, by various m e ans, th e flow of wastewat e rs, to prop e rly s hould hav e a good Icnowl e dg e of th e laws and r e gulation s 



mak e compo s it e s ampl e s, and to run th e n e cessary' physical. relating to s tr e am sanitation. Th e applicant s hould b e abl e to 
chemical and bact e riological t e sts nec e ssary to provid e th e d e v e lop n e c e s s ary r e cords and pr e par e r e quir e d r e ports, e tc. Th e 
r e quired d e gr ee of tr e atm e nt prior to di s charg e into the r e ceiving 



water. 



{b) Th e applicant must submit an application s howing that th e program s , e tc. 



applicant should b e abl e to prop e rly sup e rvi se oth e r e mploy ee s 
and plac e into practic e good public r e lations and saf e ty 



applicant poss e ss e s an activ e North Carolina grad e 11 c e rtificat e 



(fe) Th e applicant must submit an application showing that th e 



or an activ e c e rtificat e at th e high e st grad e in any oth e r s tat e and applicant poss e ss e s an activ e North Carolina grad e III c e rtificat e 
that on e of th e following pr e r e quisit e combination s of training or an activ e c e rtificat e at th e high e st grad e in any oth e r s tat e and 



and experi e nc e has b ee n m e t in order to tak e th e grad e III 
e xamination: 

fH four years of acc e ptable exp e rience in a North 
Carolina class 11. or e quivalent, wastewat e r tr e atm e nt 
plant or high e r; 
(2) graduate of high s chool, or e quivalent GED, and thr ee 
y e ars of acceptabl e e xp e ri e nc e in a North Carolina 
class II, or equival e nt, wast e wat e r treatment plant or 
high e r; 



that on e of th e following pr e r e quisit e combination s of training 
and e xp e ri e nc e has b ee n m e t in ord e r to take the grad e IV 
e xamination: 

{+) fiv e y e ars of acc e ptabl e e xp e ri e nc e in a North 
Carolina class 111. or e quival e nt, wastewater tr e atm e nt 
plant or high e r; 
(3^ graduat e of high school, or e quivalent GED. and four 
y e ar s of acc e ptabl e e xp e ri e nc e in a North Carolina 
clas s III, or e quival e nt wastewater treatm e nt plant or 



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209 



PROPOSED RULES 



^ 



high e r; 

two y e ars of college or associat e d e gr ee with 



c e rtificat e for six months and must submit an application 
showing that th e following pr e r e quisit e combinations of training 



acad e mic preparation in ch e mistry', bacteriology. and e xp e ri e nc e hav e b e en met in ord e r to tak e th e Grade II 



public h e alth, or r e lat e d fi e lds and thr e e y e ars of 
acc e ptabl e e xperience in a North Carolina class 111. or 
e quival e nt, wast e water treatm e nt plant or high e r; 

(4) graduat e of a r e cognized two y e ar coll e ge or technical 
s chool, with an a ss ociate d e gr ee in e nvironm e ntal 
s ci e nc es , and 30 months of acceptabl e e xperienc e in 
a North Carolina class III. or equival e nt, wast e wat e r 
tr e atm e nt plant or high e r; 

(^ graduat e of a r e cogniz e d coll e g e or university with a 
major in natural or physical s ci e nc e s, e ngin ee ring, or 
r e lat e d fi e ld, and two y e ars of acc e ptabl e e xp e ri e nc e 
tfl — a — North — Carolina — elass — IH^ — or — e quival e nt, 
wa s t e wat e r treatment plant or high e r. 



coll e ction Syst e ms e xamination: 

f!-) Provid e documentation from th e applicants supervi s or 
that th e following ta s ks have been compl e t e d prior to 
th e training school: 

(A) mak e a s e wer tap with a machin e ; 
f&) install a s e w e r cl e anout; 
(€) d e monstrat e ability to prop e rly op e rat e sewer 
maint e nanc e e quipm e nt. 
(3^ Hav e two y e ars — of acc e ptabl e e xp e ri e nce and 
succ es sful compl e tion of an approv e d training s chool 
for Grad e II Coll e ction Systems. 
Provid e d, how e v e r, that if an applicant fails th e Grad e II 
Coll e ction Systems e xamination aft e r thr ee att e mpts, th e 



Provid e d, how e v e r, that if an applicant fail s th e Grade IV applicant must then satisfactorily compl e t e a Grad e II Collection 



Syst e m s approv e d training s chool b e for e taking th e Grade II 
Coll e ction Syst e ms e xamination again. 

Authority G.S. 90A-39: 143B-300. 

.0208 GRADE III COLLECTION SYSTEM 
OPERATOR 

(a) ;\n applicant for a grad e III coll e ction syst e ms c e rtificat e 
fft) An applicant for a grad e I coll e ction syst e m c e rtificat e shall b e e xp e ct e d to e nsur e saf e ty, and p e rform and sup e rvis e 
(low e st) s hall hav e a basic knowl e dg e of th e purpos e and installation and maint e nance of a coll e ction system whil e 
op e ration of a coll e ction syst e m and s hall b e abl e to p e rform maintaining records and public r e lations, 
basic tasks in a mann e r that do e s not e ndang e r hims e lf li e r se lf or 
oth e rs. 



e xamination aft e r thr ee att e mpts, th e applicant mu s t th e n 
satisfactorily compl e te a Grad e IV approv e d training school 
b e for e taking th e Grade IV examination again. 

Authorit}- G.S. 90.4-39: 143B-300. 

.0205 GRADE 1 COLLECTION SYSTEM 
OPERATOR 



fb) Applicant mu s t hold a curr e nt Grad e II coll e ction Syst e m 
c e rtificat e for six months and must submit an application 
(fe) Th e applicant must submit an application s howing that showing that th e following prer e quisite combinations of training 



on e of th e following pr e r e quisit e combinations of training and 
e xp e ri e nc e has b ee n m e t in ord e r to tak e th e Grad e I Coll e ction 
Syst e ms e xamination: 

f+4 two y e ar s of acc e ptabl e e xp e ri e nc e and s ucc e ssful 

compl e tion of an approv e d training school for Grad e 

I Coll e ction Syst e ms; 
(34 compl e tion of th e e ighth grad e and on e y e ar of 

acc e ptabl e e xp e ri e nc e and succ e ssful compl e tion of 

an approv e d training school for Grade I Coll e ction 

Sy s t e ms; 
(^ graduat e of high s chool or e quival e nt GED and 

s ucc es sful compl e tion of an approved training school 

for Grad e I Collection Syst e m s . 
Provid e d, how e v e r that if an applicant fails th e Grad e I 
Coll e ction Sy s t e ms e xamination aft e r thr ee att e mpts, th e 



and e xp e ri e nc e have been met: 

f44 Hold a curr e nt CPR c e rtification. 

(3) Hav e thr ee y e ars of acc e ptabl e e xp e ri e nc e and 
succ e ssful compl e tion of an approv e d training school 
for Grad e III Coll e ction Syst e ms. 
Provided, howev e r, that if an applicant fails th e Grad e III 
Coll e ction Sy s t e m s e xamination aft e r thr e e att e mpts, th e 
applicant mu s t th e n — s atisfactorily compl e t e a Grade III 
Collection Systems approv e d training school b e fore taking th e 
Grad e III Coll e ction Syst e ms examination again. 



Authority^ G.S. 90A-39: I43B-300. 

.0209 GRADE IV COLLECTION SYSTEM 
OPERATOR 



applicant must th e n satisfactorily compl e te a Grad e I Coll e ction (a) An applicant for grad e IV coll e ction s yst e m s c e rtificat e 

Sy s t e m s approv e d training school b e for e taking th e Grad e I 
Coll e ction Systems examination again. 

Authorit\' G.S. 90.4-39: 1433-300. 



.0207 GRADE II COLLECTION SYSTEM 
OPERATOR 

fa) An applicant for a grad e II coll e ction syst e ms c e rtificat e 
shall b e expected to install, maintain and r e pair various 
components of a coll e ction s>st e m in a saf e mann e r. 

(b) Applicant must hold a curr e nt Grade I Coll e ction System 



s hall b e e xp e ct e d to sup e r\'is e employ ees and manage the ov e rall 
in s tallation, op e ration and maint e nanc e of coll e ction sy s tems in 
a saf e mann e r. 

fb) Applicant must hold a curr e nt Grad e 111 Coll e ction Syst e m 
certificat e for six months and must submit an application 
s howing that th e following prer e quisit e combinations of training 
and e xp e ri e nc e have b e en met: 

(4-) Hold a curr e nt CPR c e rtification. 

(3) Compl e tion of two hour s of approv e d confined spac es 
training. 

(4) Have — four y e ar s of acceptable e xperience and 



210 



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July 15, 1998 



13:2 



PROPOSED RULES 



succ e ssfiil completion of an approv e d training s chool 

for Grade IV Coll o ction Syotems. 
Provid e d, how e v e r that if an applicant fails th e Grad e IV 
Colloction Syst e ms examination aft e r thr ee att e mpt s , th e 
applicant must then satisfactorily compl e t e a Grade IV 
Coll e ction Systems approv e d training school befor e taking th e 
Grade IV Coll e ction Systems e xamination again . 

Authority G.S. 90A-39; J43B-300. 

.0210 SUBSURFACE SYSTEM OPERATOR 

(a) An applicant for a Subsurfac e Syst e m Op e rator c e rtificat e 
shall b e expected to hav e sp e cific Icnovvl e dge regarding the 
subsurface tr e atm e nt and disposal of wast e water. The applicant .0211 
shall hav e Icnovvl e dg e of th e principals of th e soil as a tr e atm e nt 



of an approv e d subsurfac e training school; or 
{6} b e a privat e hom e own e r who intends to op e rat e only 

their — own — dom e stic. — on sit e — syst e m — who — has 

succ e ssfully — compl e t e d — an — approv e d — subsurfac e 

training school. 
Provid e d, how e v e r that if an applicant fails the Subsurfac e 
Sy s t e ms e xamination aft e r thr ee att e mpts, th e applicant must 
th e n satisfactorily complet e a Sub s urfac e Syst e ms approv e d 
training — school — b e for e — taking — the — Sub s urface — Syst e ms 
e xamination again. 



Authoht\' G.S. 90A-39; 143B-300. 



LAND APPLICATION/RESIDUALS 
OPERATOR 



system and th e d e sign and construction of subsurface tr e atm e nt (e) An applicant for a Land Application/R es iduals Op e rator 

and disposal syst e ms. — The applicant shall b e familiar with c e rtificat e shall b e e xp e ct e d to hav e sp e cific loiowledgo 



wast e wat e r characteristics and th e prop e r op e ration and r e garding tr e atm e nt and utilization of r e siduals and biosolids. 

maint e nance of a septic tank, pump tank, sand filt e r, gr e as e Th e applicant shall hav e Icnowl e dg e of th e principals of th e soil 

trap/gr e as e — interc e ptor, — oil/wat e r — s e parator, — conv e ntional as a tr e atm e nt syst e m and th e prop e r op e ration of land 

ubsurfac e syst e m, low pr e ssur e pip e syst e m, and oth e r application syst e ms. Th e applicant shall b e familiar with th e 



alt e rnative subsurfac e syst e ms, including thos e consisting of charact e ristics of r e siduals and biosolids and th e prop e r 

multipl e drain fi e lds. Th e applicant shall also b e familiar with op e ration and maint e nanc e of th e e quipm e nt us e d in th e land 

various pumps, distribution m e chanisms and e l e ctronic controls application proc e ss. Th e applicant shall also b e familiar with th e 

commonly us e d in th e s e syst e ms; and s hall hav e th e ability to laws and r e gulation s gov e rning th e s e syst e ms and shall hav e th e 

mak e calculations and m e asur e wast e wat e r flow rat e s in th e s e abilit>' to malc e appropriat e calculations. Th e applicant shall also 



syst e ms by various m e ans. Th e applicant shall also b e familiar 
with th e laws and rul e s gov e rning th e s e s y s t e m s and s hall hav e 



hav e th e abilit\' to k ee p and int e rpr e t r e cords and to compl e t e 
r e ports as r e quir e d by th e p e rmit. 



the abilit>' to k ee p and int e rpr e t r e cords and to compl e t e r e ports (te) Th e applicant shall submit an application showing that 

as r e quir e d by th e p e rmit. on e of th e following pr e r e quisite combinations of training and 

(fe) Th e applicant shall submit an application showing that e xp e ri e nc e is m e t in ord e r to tak e th e Land Application 



on e of th e following pr e r e quisit e combinations of training and 
e xp e ri e nc e is m e t in ord e r to tak e th e Subsurfac e Syst e m 
e xamination. 

f+) thr ee y e ars of acc e ptabl e e xp e ri e nce in subsurface 
syst e m op e ration, installation, insp e ction or design 
and th e succ e ssful completion of an approv e d 
subsurfac e training school; or 

{3^ compl e tion of th e eighth grade and hav e two y e ar s of 
e xp e ri e nc e — m — subsurface — syst e m — operation, 
installation, insp e ction or d e sign and th e s ucc ess ful 
compl e tion of an approv e d sub s urfac e training school; 
eF 

(5) b e a graduat e of high s chool or hav e e arn e d an 
e quival e nt GED and hav e on e y e ar of e xp e ri e nc e in 
subsurface syst e m operation, in s tallation, insp e ction 
or d e sign and succe s sful compl e tion of an approv e d 
subsurfac e training school; or 

(4) b e a graduat e of a two or four y e ar coll e g e (with a 
minimum of 900 contact hours) with acad e mic 
pr e paration in chemistr>'. biolog\'. public h e alth, 
g e olog>', e nvironm e ntal sci e nc e , agronomy, s oils 
e ngin ee ring, — or a related — fi«W — and — s ucc ess ful 
completion of an approv e d sub s urface training s chool; 
er 

(^ b e a regist e r e d sanitarian, prof e ssional engineer, or 
activ e ly — c e rtifi e d — wast e wat e r — operator with — aU 
r e quir e d r e newal f ee s paid and succ e ssful completion 



(3) 



(^ 



W 



e xammation. 

f4-) thre e y e ars of acceptable e xp e ri e nc e in a land 
application operation, and th e succ e ssful compl e tion 
of an approv e d land application training s chool; or 
completion of th e e ighth grad e and have two years of 
e xp e ri e nc e in a land application op e ration and th e 
s ucc e ssfiil compl e tion of an approv e d land application 
training s chool; or 

b e a graduat e of high s chool or hav e e arn e d an 
e quival e nt GED and hav e on e y e ar of e xp e rienc e in a 
land application op e ration, and s ucc ess fiil compl e tion 
of an approv e d land application training school; or 
b e e ith e r: 

(t^ a graduat e of a two or four y e ar coll e g e (with a 
minimum of 900 contact hours) with acad e mic 
pr e paration — in — ch e mistry, — biology, — public 
h e alth, — g e olog>', — e nvironm e ntal — science, 
agronomy, soils, e ngin ee ring, or a related fi e ld; 

Of 

(B) a c e rtifi e d wast e wat e r tr e atm e nt plant op e rator 

wi#i — aH — r e quir e d — r e n e wal — fees — paid;and 

succ e ssfiil compl e tion of an approv e d land 

application training school. 

Provid e d, how e v e r that if an applicant fails th e Land Application 

Sy s t e ms e xamination aft e r thr ee att e mpts, th e applicant must 

th e n sati s factorily compl e t e a Land Application Syst e m s 

approv e d training s chool before taking th e Land Application 



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211 



PROPOSED RULES 



Systems e xamination again. 
Authoritx' G.S. 90A-39: 143B-300. 



.0212 SPRAY IRRIGATION OPERATOR 

(a) An applicant for a Spray Irrigation Op e rator certificat e 



unable to meet th e experi e nc e r e quir e m e nt, for the purpos e of 

b e coming an op e rator in training (Oil). In order to qualify' for 

hall b e expect e d to hav e s p e cific knowledg e regarding th e the OIT c e rtificat e th e applicant may lack a maximum of two 

y e ars of e xp e ri e nc e that would b e r e quir e d to gain full 
c e rtification at that l e v e l. 



a iiuii u e (■ ■ Npcci e u lu nav e a po-iin. luiuv v iuug c i c gaiumg iii c 

tr e atm e nt and spray irrigation of wa s t e wat e r. Th e applicant shall 
hav e knowledge of th e principal s of th e s oil as a tr e atm e nt 
l yst e m and the proper op e ration of spray irrigation s yst e m s . Th e {b) Upon succ es sfully passing th e e xamination at that l e v e l 



applicant s hall b e familiar with th e charact e ristics of wast e wat e r 
and th e prop e r op e ration and maint e nanc e of th e e quipm e nt us e d 
in th e spray irrigation proc es s. — The applicant must also b e 



th e applicant will b e issu e d an "op e rator in training" c e rtificate 
for th e grad e appli e d for. 
(e) The op e rator in training c e rtificat e do e s not qualify' th e 



familiar with th e laws and r e gulations gov e rning th ese sy s t e m s individual to b e th e ORC of a facility of th e s am e classification 
and shall have th e ability to malt e appropriat e calculation s . Th e a s th e OIT c e rtificat e . — Th e OIT c e rtificat e does qualify' th e 



applicant s hall also hav e th e ability to k ee p and int e rpr e t r e cords 
and to compl e t e r e ports as requir e d by the p e rmit. 

fb^ Th e applicant shall submit an application s howing that 
on e of th e following pr e r e qui s it e combinations of training and 
experi e nc e has b ee n m e t in ord e r to tak e th e Spray Irrigation 
e xamination. 
fB three 



s pray 



m 
^ 

w 



individual to b e th e ORC of a facility that is on e or mor e 
classifications b e low th e grad e of the OIT c e rtificat e . 

(-d) Op e rator in Training c e rtificat e s must b e r e n e w e d 
annually but s hall only b e valid for a p e riod of two y e ars. When 
th e hold e r of an OIT c e rtificat e compl e t e s th e pr e r e qui s it e 
e xp e ri e nc e for th e standard c e rtificate at that l e v e l, th e hold e r 
must submit an application docum e nting th e e xp e ri e nc e , with th e 
appropriat e f ee for a r e plac e m e nt c e rtificat e in ord e r to r e c e ive 
th e standard c e rtificat e at that l e v e l. 

Authority G.S. 90A-39: I43B-300. 

.0214 DEFINITIONS 

(a) Acc e ptabl e e xp e ri e nc e shall m e an th e total tim e sp e nt in 
a wat e r pollution control syst e m op e ration and r e lat e d fi e lds of 
which at least 50 p e rc e nt must b e actual op e rating e xp e ri e nc e in 
a wat e r pollution control syst e m of th e sam e typ e as th e 
c e rtificat e b e ing appli e d for (i e . actual e xp e ri e nc e in a 
wast e wat e r tr e atm e nt syst e m is r e quir e d for applicants for 
wast e wat e r op e rators c e rtificates, collection systems exp e ri e nc e 
is r e quir e d for applicants for coll e ctions c e rtificat e s, e tc.) 

fb) R e cogniz e d college or univ e rsity shall m e an an accr e dit e d 
four y e ar institution awarding degre e s on th e bach e lor's l e v e l. 
(e) R e cogniz e d two y e ar coll e g e or t e chnical school shall 
(4) b e a privat e hom e own e r who int e nds to op e rat e only m e an an accr e dit e d two y e ar institution awarding d e gr ees on th e 

associate level. 

(4) R e lat e d e xp e ri e nc e shall m e an e xp e ri e nc e in fi e ld s r e lat e d 
to th e wast e wat e r fi e ld s uch as: wat e r treatm e nt op e ration and 
Provid e d, how e v e r, that if an applicant fails th e Spray Irrigation maint e nanc e : wast e wat e r maint e nanc e or installation: water or 
e xamination aft e r three attempts, th e applicant mu s t th e n 
s atisfactorily compl e te a Spray Irrigation approv e d training 
school b e fore taking th e Spray Irrigation e xamination again. 

Authority G.S. 90A-39: I43B-300. 

.0213 OPERATOR-IN-TRAINING 

(*) Th e Commission may allow an applicant for th e Grad e III 
or IV wastewater tr e atm e nt plant op e rator c e rtificat e or th e 
Grad e III or IV coll e ction s yst e m op e rator c e rtificat e to tak e th e 
e xamination at that l e v el , if th e individual has m e t all of th e 
pr e requisit e e ducation and c e rtification r e quir e m e nts but is 



y e ar s of acc e ptabl e e xp e ri e nc e — in- 

irrigation op e ration: or 

compl e tion of th e e ighth grad e and hav e two y e ars of 

e xp e ri e nc e in spray irrigation; or 

b e a graduat e of high school or hav e e arn e d an 

e quival e nt GED — and hav e on e y e ar of acc e ptabl e 

e xp e ri e nce in spray irrigation; or 

b e e ith e r: 

fA^ a graduat e of a two or four y e ar coll e g e (with a 
minimum of 900 contact hours) with acad e mic 
pr e paration — m — ch e mi s try. — biology. — public 
h e alth. — g e ology. — e nvironm e ntal — s ci e nc e , 
agronomy, soils, e ngin e ering or a related field; 
er 

fB) a c e rtifi e d wa s t e wat e r tr e atm e nt plant op e rator 
W4#i — aU — r e quir e d — r e n e wal — fees — paid;and 
succ e ssful compl e tion of an approv e d spray 
irrigation training s chool; or 

b e a privat e hom e own e r who int e nds to op e rat e only 

th e ir own dom e stic, spray irrigation system who has 

succ e ssfully compl e t e d an approv e d spray irrigation 

training school. 



wast e wat e r laboratory exp e ri e nc e : proj e ct e ngin ee ring involving 
d e signing, con s tructing or start up of tr e atm e nt facilities: 
coll e ction syst e m op e ration and maint e nanc e (for wast e wat e r 
c e rtification or s ub s urfac e c e rtification) and insp e ction of 
wast e wat e r tr e atm e nt faciliti e s. 

(e) Satisfactory or succ e ssful compl e tion of an approv e d 
training school shall mean att e ndanc e of at l e ast 8 p e rc e nt of 
th e total hours of instruction of a non d e gr ee technical cours e 
approv e d by th e Wat e r Pollution Control System Operators 
C e rtification Commis s ion. 

{f) Two \ e ars of coll e g e shall m e an a minimum of 900 
contact hours. 



212 



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PROPOSED RULES 



Authority G.S. 90A-39: N3B-300. 

SECTION .0300 - CERTIFICATION BY 
EXAMINATION 

.0301 TIME AND PLACE OF EXAMINATION 

The Certification Commission or its representativ e s shall 
conduct examinations for c e rtification at th e tim e and plac e 
h e reinaft e r d e signat e d: 

f4^ An e xamination will b e giv e n following th e annual 
wa s t e water treatm e nt plant op e rator s ' s chool as 
sponsor e d by th e North Carolina Water Control 
Association and th e Wat e r Pollution Control Syst e m 
Op e rators C e rtification Commission. Th e dat e . tim e , 
and plac e of e xamination will b e d e t e rmin e d by th e 
C e rtification Commission. — Announc e m e nts of th e 
school and examination will b e mail e d to th e own e rs 
of all wast e wat e r tr e atm e nt plants and to oth e rs as 
deemed appropriat e by th e C e rtification Commission. 
Each applicant filing for e xamination will b e notifi e d 
in writing of th e dat e . tim e , and plac e of th e 
e xamination and th e r e quir e d grad e for pa ss ing th e 
e xamination. 
(3) Examinations may b e administ e r e d following r e gional 
wast e wat e r tr e atm e nt plant op e rator' s schools. Th e 
e xamination will b e sch e dul e d at th e sam e location at 
which th e school is h e ld or at anoth e r conv e ni e nt 
location. Announc e m e nts of th e school will b e mail e d 
to all wast e wat e r tr e atm e nt plants in th e r e gion in 
which th e school will b e h e ld. In addition, th e dat e 
and tim e of th e e xamination will b e announc e d at the 
school and e ach applicant will b e notifi e d in writing 
of th e dat e . tim e , and plac e of th e e xamination and th e 
r e quir e d grad e for passing th e examination. 
(^ Special — e xamination s — may — be — giv e n — by — the 
Commission at any time or plac e wh e n a s uffici e nt 
number of applications have been fil e d to justify' an 
e xamination, a s d e t e rmin e d by th e Commi ss ion. Each 
applicant filing for e xamination will b e notifi e d in 
writing of th e dat e , tim e , and plac e of th e e xamination 
and the required grad e for passing th e e xamination. 

Authorit\' G.S. 90A-39; 93B-8: 143B-300. 



.0302 CONDUCTING AND GRADING 
EXAMINATIONS 

(e) Examinations, pr e par e d by m e mb e rs of th e Commission 
er — its — authorized — r e pr ese ntativ es — and — approv e d — by — the 



proctor and th e id e ntification numb e r will b e r e corded on th e 
fac e of th e examination paper. 

(b) R e pr e s e ntativ e s of th e Commission, or other authoriz e d 
r e pr e s e ntativ es , who ar e s up e rvising th e e xaminations may tak e 
appropriat e action again s t applicant s , including dismissal from 
th e e xamination, if ch e ating do e s occur. If th e applicant holds 
a — c e rtificat e — alr e ady. — the — Commission — may — reveke — the 
c e rtification in accordanc e with G.S. 90A 11 and ISA NCAC 
8 D .000 4 . for ch e ating on an e xamination. 



Authority' G.S. 90A-39; 93B-8: 143B-300. 



.0303 EXAMINATION RESULTS AND ISSUANCE 
OF CERTIFICATES 

(a) Within as short a p e riod as f e asibl e , aft e r an e xamination, 
th e e xamin ee will b e inform e d, in writing only, by the 
Commission or its authoriz e d r e pr e s e ntativ e s as to th e r e sults of 
hi s e xamination. If a passing scor e is mad e , such notification 
constitut e s c e rtification by th e Commission that th e applicant is 
a qualifi e d op e rator in th e appropriat e grad e . — Aft e r e ach 
e xamination, a list of tho se c e rtifi e d shall b e drawn up and mad e 
a part of th e p e rman e nt r e cords of th e Commission. Copi e s of 
th ese li s t s will b e provid e d to e ach Commission m e mb e r. Upon 
compl e tion of th e l e tt e ring, th e qualify'ing applicant will b e 
i s su e d a c e rtificat e d e signating his l e v e l of comp e t e ncy. 

(fe) Und e r normal circumstanc e s, n e ith e r th e e xamination 
grad e nor th e e xamination pap e r of any applicant will b e mad e 
availabl e to anyon e oth e r than th e m e mb e rs of th e Commission 
and thos e approv e d p e rsons who assist in conducting and 
grading th e e xaminations. Th e e xamination pap e rs will b e h e ld 
for a p e riod of six months following notification to th e 

e xamin ee . Qu es tion s — by — the — applicant — concerning the 

examination must b e mad e in writing to th e Commission within 
that p e riod. An applicant who fails to pa s s an e xamination s hall 
b e e ntitl e d to and notifi e d of th e privil e g e to r e vi e w his 
e xamination in th e pr ese nc e of on e or mor e — Commis s ion 
m e mb e r s or its authoriz e d r e pr ese ntativ e in th e Ral e igh offic e , 
or upon r e qu es t, at a r e gional offic e of th e D e partm e nt of 
Environm e nt, H e alth and Natural R e sourc e s or oth e r appropriat e 
plac e . 

(e) In ord e r to assur e activ e c e rtification, an annual r e n e wal 
f ee will b e requir e d as specifi e d in G.S. 90A M. If th e r e n e wal 
fe e is not paid for thre e cons e cutiv e y e ars, th e Commission may 
invalidat e th e c e rtificat e in accordanc e with 15 A NCAC 8 D 
.0004(d). 



Authority G.S. 
N3B-300. 



90.4-39: 90A-40; 90A-42: 93B-3: 93B-8; 



Commission, will bo given only to thos e who, aft e r filing proper 
application, have boon determin e d to b e e ligibl e . Examinations 



will b e conduct e d and grad e d und e r th e sup e rvision of a 



.0304 CONDITIONAL CERTIFICATION 

Th e c e rtification — commi ss ion — ff»y — issae — a — conditional 
r e pr e s e ntativ e — ef — the — Commission, — er — its — authoriz e d c e rtification with e xamination when, in th e opinion of th e 

commi s sion, th e situation warrants special consid e ration. — A 
conditional c e rtificat e with examination may b e issu e d at th e 



r e presentativ e s. — A ss istanc e in conducting and grading the 
e xaminations may b e sought from m e mb e rs of th e Division of 



Environm e ntal Manag e ment, and oth e r appropriat e p e rsons with discr e tion of th e commis s ion when th e commission find s that 



th e approval of th e Commission. WTion e ach e xamin ee r e c e iv e s 



hi s e xamination pap e r, h e will identify hims e lf by way of his 
driv e r's licens e or oth e r form of identification s atisfactory to th e 



this is most appropriate for ensuring the prop e r op e ration of 
wast e water tr e atment facilities. — Conditional c e rtificates with 
e xamination will g e nerally b e limited to circumstances whore th e 



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213 



PROPOSED RULES 



natur e of th e wa s t es and wastewater tr e atm e nt proc e ss e s at 
c e rtain faciliti es mav b e s uffici e ntlv diff e r e nt from conv e ntional 



-eU 



classification — of th e — facility — fer — which — he — is 
r es pon s ibl e : 
{¥) Wh e n an op e rator has att e mpt e d to secur e p e rman e nt 

c e rtification by taking e xamination and fails: 

(^ An e mplo\ e r had un e xp e ctedly lost a c e rtifi e d 

op e rator and must s e cur e a c e rtifi e d op e rator in ord e r 

to comply with th e G e n e ral Statut e s. 

fe) Application for a t e mporary c e rtificat e must bo mad e on 

-/^ — conditional — c e rtification with an official application blank, obtainabl e fi'om th e Commission. 



dom e stic wa s t e wat e r tr e atment as to warrant the issuanc e ot a 
conditional c e rtificat e \sith e xamination. The commission mas 
r e quir e — that — propo s al s — fer — conditional — c e rtification — with 
e xamination includ e a training program. — Generally, such 
proposal s will b e con s id e r e d onK if rendered by an association 
r e pr ese nting th e particular tr e atment faciliti e s in>olv e d in a 



sp e citic — type — proc es 

e xamination i ss u e d und e r th ese circum s tanc e s will b e valid for and must b e accompani e d by th e appropriate certification f ee . 

us e by th e hold e r onK in th e typ e of tr e atm e nt facility for which It must also b e accompani e d by a stat e m e nt signed by th e mayor. 

th e op e rator is c e rtifi e d. G e n e rally, th ese will b e id e ntifi e d by a the city manag e r, th e chairman of th e governing board or chi e f 



administrative offic e r of th e political s ubdivision or from th e 

own e r or offic e r in r e spon s ibl e charg e in th e cas e of a privat e 

will b e r e quired in accordanc e \\ ' \xh 90 A 12. A r e qu e st for a utility or indu s try. Such stat e m e nt shall d e lin e at e th e r e asons 



s p e cific standard indu s trial clas s ification numb e r. In ord e r to 
assur e an activ e conditional c e rtificat e , an annual r e n e wal f ee 



conditional c e rtificat e with e xamination will b e mad e by why a t e mporary c e rtificat e is b e ing r e qu e st e d, shall d e signate 
application — and — submitted — w4th — appropriat e — f«e — te — the th e applicant as th e op e rator in r e sponsibl e charge, and shall 
commi s sion. Examination for conditional c e rtification will b e 
pr e par e d and admini s t e r e d as dir e ct e d by th e c e rtification 
commission. 



Authority- G.S. 90A-3~: 90A-40(a): 90A-42<4l: 143B-300. 

SECTION .0400 - CERTIFICATION WITHOUT 
EXAMINATION 

.0402 RECIPROCITY CERTIFICATION 

(a^ P e rman e nt c e rtificat es in th e appropriat e tvp e and grad e 



s p e cify' plans to acquire p e rman e nt c e rtification by e xamination. 
Th e conditions surrounding this request w ill b e r e vi e w e d by th e 
s taff and if all condition s ar e m e t th e Commi s sion or its d e sign ee 
max appro\ e th e issuanc e of th e t e mporary c e rtificat e . If th e 
staff d e t e rmin e s that all conditions hav e not been m e t. th e 
Commi s sion will consid e r th e requ e st and will d e t e rmin e if th e 
t e mporary c e rtificat e i s to b e issu e d. 

{4) T e mporary c e rtificat e s ar e valid for on e y e ar from th e dat e 
of issuanc e at the plac e of e mploym e nt for which th e y ar e 
is s u e d. 

fe-> A t e mporary c e rtificat e ma\ onK b e r e qu e st e d for 



may b e issu e d without e xamination to indi\ iduals list e d on th e "t e mporary" situations and will b e limit e d to th e original on e 

R e ciprocity R e gi s try of th e National A s sociation of Boards of 

C e rtification. 



\ e ar of issuanc e plus on e \ ear additional ren e wal p e riod for on e 
individual. A t e mporan c e rtificat e or c e rtificat es will b e valid 
{b) yVft e r r e c e ipt of application, f ee . and proof of listing on at an> individual xi i at e r pollution control s> st e m for no mor e than 
th e R e ciprocity Registry of th e National Association of Boards thr ee continuous > e ars from th e original dat e of issuanc e , 
of Certification, th e C e rtification Commi s sion or its d e sign ee {f) If for any r e ason it becom e s n e c e ssan' for th e emplov e r to 

may issu e a p e rman e nt c e rtificat e in th e appropriat e tsp e and fil e an application r e qu e sting th e is s uanc e of a se cond t e mporary 
grad e if satisfi e d that all oth e r conditions for c e rtification ar e c e rtificat e . — stieh — application — mast — be — accompani e d — by 

fe4 In ord e r to as s ur e activ e c e rtification, an annual ren e wal 
f ee in th e amount s p e cifi e d in G.S. 90A 12 will b e r e quir e d. 



Aulhorit}- G.S. 90A-3': 90A-40(d): 90A-42: 143B-300. 

.0404 TEMPORARY CERTIFICATION 

(a) T e mporary c e rtification, without e xamination. ma\ be 
issu e d bs th e C e rtification Commi s sion at its di s cr e tion. 
T e mporan c e rtificat e s ma\ — be — issu e d with — sueh — s p e cial 
condition s or r e quir e m e nts r e lating to th e plac e of e mplo\m e nt 
of th e p e rson holding th e c e rtificate or oth e r matt e rs as the 
Commission ma> deem necessarx to prot e ct th e public h e alth 
and maintain th e xxat e r qualitv standards in th e r e c e ix ing wat e r s 
as assign e d bv th e Environm e ntal Manag e m e nt Commission. 



docum e ntation of the employ e r's e fforts to e mplox a prop e rK 
c e rtifi e d op e rator in addition to all applicabl e r e quir e m e nts for 
t e mporary c e rtificat e issuanc e . 

{%) Th e applicant for a t e mporary c e rtificat e must poss e ss th e 
capability to b e com e e ligible for e xamination for p e rman e nt 
c e rtification within th e p e riod of th e r e qu e st e d temporary 
c e rtificat e . Upon b e coming qualifi e d b\ r e a s on of e xp e ri e nc e . 
e ducation and training, h e is e xp e ct e d to appl\ for e xamination 
and obtain a perman e nt c e rtificat e . Failur e to att e mpt p e rman e nt 
c e rtification will b e r e a s on for not granting r e n e wal. 

fh-) If e ligibl e for t e mporary c e rtification, th e applicant will b e 
issu e d a t e mporary c e rtificat e of a grad e e quival e nt to th e 
cla ss ification of the wast e wat e r tr e atm e nt facility in which th e 
applicant i s e mploy e d. 



fb^ i ss uanc e of such t e mporary c e rtificates shall be limit e d to Authority G.S. 90A-40(e): 143B-300. 
s ituations wh e r e the suppK or availability of c e rtifi e d op e rators 



i s found to b e inadequate. Circumstanc e s that will b e con s id e r e d 

b> th e Commission includ e : 

(-H A c e rtifi e d op e rator in a low e r grad e l e v e l — is 
accumulating e xp e ri e nc e in ord e r to qualify to tak e 
e xamination in a high e r grade l e v e l e qual to th e 



.0405 TEMPOR.\RY CERTIFICATION RENEWAL 

fa4 T e mporan. c e rtification r e n e wal must b e r e qu es t e d 60 
das 5 prior to th e e xpiration date of a t e mporary c e rtificat e . Th e 
r e qu e st must b e mad e bs application and accompani e d by 
appropriat e f ee and a l e tt e r or stat e ment pr e par e d by th e own e r 



214 



.\ORTH CAROLISA REGISTER 



July 15. 1998 



13:2 



PROPOSED RULES 



s e tting forth att e mpts made by th e op e rator to b e com e 
p e rman e ntly c e rtified by e xamination during the temporary 
certification period and a documentation of th e e fforts by th e 



cemiicuLiuii ^ci luu miu u uucuiiiuiitmnjii ui m e c injim uy ui c 

ovsTior to s e cur e a permanently c e rtifi e d op e rator, and any oth e r 
information request e d by th e commission r e lativ e to the owner's 
inability to retain a p e rman e ntly certified op e rator. 

(b) No temporary c e rtification r e n e wal shall b e issu e d if th e 
op e rator lacks th e capacity to b e com e e ligibl e for e xamination wh e n an applicant is in e ligible for certification or has ov e rpaid. 
for p e rmanent certification at th e required grad e within on e year 



Authority G.S. 90A-40(f). 

SECTION .0500 - FEES: REINSTATEMENT: 
AND ANNUAL REPORT 

.0502 REFUNDING OF FEES 

Foes will b e r e fijnd e d in accordanc e with 1 5 A NCAC 8 A .0202 



Authority G.S. 90A-42: 143B-300. 

.0506 CONTRACT OPERATORS ANNUAL 
REPORT 



of r e n e wal application dat e . — The T e mporary C e rtification 
Ren e wal shall b e valid for one y e ar from th e dat e of e xpiration 
of th e initial T e mporary C e rtificat e . 

(e) The ren e wal r e qu e st will b e con s id e r e d for approval by 
th e c e rtification commission and upon approval, a certificate will All Contract Op e rations Firms must file an annual r e port with 

be issued with th e und e rstanding that the commission will not the — C e rtification — Commission — in — accordance — with — GtSt 
issu e a s e cond t e mporary c e rtificat e r e n e wal to th e sam e 
individual. 



Authority G.S. 90A-40(e): 90A-42; N3B-300. 

.0406 VOLUNTARY CONVERSION TO 
MANDATORY CERTIFICATION 

(a) Individuals who hold c e rtificat es of comp e t e ncy issu e d 
und e r th e voluntary c e rtification program for coll e ction sy s t e m 
op e rators administ e r e d by th e North Carolina Wat e r Pollution 
Control Association may apply for conv e rsion of th e voluntary' 
c e rtificat e to a c e rtificat e issu e d by th e C e rtification Commission 
of th e sam e typ e and grad e in accordanc e with G.S. 90 A '10(0- 

{b) Applications for conv e rsion will b e mad e availabl e to 
thos e individuals c e rtifi e d und e r th e voluntary c e rtification 
program. — Th e s e applications must b e submitt e d with th e 
appropriat e f ee for a conv e rsion c e rtificat e in accordanc e with 
G.S. 90A 12 ( 8 ). 



90A ^5(c). — This r e port shall b e on fil e in the offic e of th e 
Chairman on or b e for e January 1 5 of each y e ar. This report 
shall includ e : 

m Th e nam e of th e company, mailing addr e ss, phone 
numb e r, nam e of th e own e r, and nam e of th e principal 
contact for c e rtification activiti e s; th e nam e s and 
p e rmit numb e rs of th e syst e ms for which th e company 
is r e sponsibl e ; th e counti es in which th e company 
op e rat es ; — th e c e rtifi e d — laboratory — used — by th e 
company; th e nam es of th e c e rtifi e d p e rsonn e l 
e mploy e d by th e company and th e ir c e rtification s ; 
oth e r r e lat e d s e rvic e s that th e company wish e s to 
r e port; and 
(3) th e company's willingn es s to app e ar on a list of 
contract op e rations firms and to hav e this fil e 
information availabl e to th e public. 

Authority G.S. 90A-45(c). 



SUBCHAPTER 8C - CLASSIFICATION OF WATER POLLUTION CONTROL SYSTEMS 

.0002 RATING SCALE FOR CLASSIFICATION OF WASTEWATER TREATMENT FACILITIES 

(a) In plant proc e ss e s and related control equipment which ar e an int e gral part of indu s trial production s hall not b e consid e r e d 
wast e tr e atm e nt for the purpose of this S e ction. Faciliti e s consisting of a se ptic tank and subsurfac e di s po s al fi e ld without a pump 
or oth e r appurt e nances will not b e s ubj e ct to th e prov i sions of thi s S e ction. Pr e tr e atm e nt s y s t e ms prior to s ubsurface treatm e nt and 
disposal syst e ms in e xcess of septic tanks, pump tanks, s iphon or pump do s ing syst e m s , s and filt e r s , gr e a se traps and gr e a se 
int e rc e ptors, and oil/water separators shall b e rat e d according to this S e ction. — Pr e tr e atm e nt s y s t e ms prior to s pray irtigation of 
wast e wat e r in e xc e ss of pr e liminary tr e atm e nt, lagoons, s e ptic tanks, pump tanks, pumps, sand filt e r s , gr e as e trap or gr e a s e 
int e rc e ptors, oil/water separator s , di s inf e ction and ch e mical addition for nutri e nt or alga e control, shall b e rat e d according to this 
S e ction. 

(b) Th e following scal e i s us e d for rating wast e wat e r tr e atm e nt faciliti e s: 

ITEM POINTS 

{+) Industrial Pretreatment Unit s orlndu s trial Pr e tr e atm e nt Program(s ee d e finition No. 33) 4 

(3) DESIGN FLOW OF PLANT IN gpd [not applicabl e to non contaminat e d cooling wat e rs, sludg e handling faciliti es for water 

purification plants, tota l ly clo se d cycl e sy s t e ms ( see d e finition No. 1 1), and faciliti e s consisting only of It e m ( 4 ) (d) or It e ms 

(1)(d)and(ll)(d)] 





20.001 

50.001 

100.001 

250.001 



20.000 + 

50.000 2 

100.000 ^ 

250.000 4 

500.000 % 



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215 



PROPOSED RULES 



500.001 -- 1.000.000 % 

1.000.001 -- 2.000.000 W 

2.000.001 — (and up) rat e 1 point additional for e ach 200.000 gpd capacity up to a maximum of: ^ 

Design Flow (gpd): 
(^ PRELIMINARY UNITS/PROCESSES ( see d e finition No. 32) 

fA) Bar Scr ee ns 4- 

eF 

f&) Mechanical Scr ee ns. Static Scr ee ns or Comminuting D e vic es 3 

{Q) Grit R e moval 4- 

er 

{&) M e chanical or Aerat e d Grit R e moval 3 

(&) Flow M e asuring D e vic e 4- 

eF 

fF) Instrum e nt e d Flow M e asur e m e nt 3 

{G) Pr e a e ration 3 

(H) Influ e nt Flow Equalization 3 

^ Gr e a se or Oil S e parators — Gravit\' 3 

M e chanical 3^ 

Dissolv e d Air Flotation % 

f44 Pr e chlorination §> 

(4) PRIMARY TREATMENT UNITS/PROCESSES 

(A) . . . S e ptic Tank (s ee d e finition No. 4 3) 3 

(B) ... ImhoffTank # 

(G) . . . Primar\' Clarifi e rs & 

(B) . . . S e ttling Ponds or S e ttling Tanks forlnorganic Non toxic Mat e rials (sludg e handling faciliti e s 

for v s at e r purification plant s , s and, grav e l, s ton e , and oth e r mining op e rations e xc e pt r e cr e ational 

activiti e s such as g e m or gold mining) 3 

(^ SECONDARY TPv£ATMENT UNITS/PROCESSES 
(A) Carbonac e ous Stag e 

(+) A e ration High Puritv' Oxyg e n Sv s t e m 30 

Diffus e d Air System +0 

M e chanical Air Syst e m (fix e d, floating or rotor) % 

S e parat e Sludg e R e a e ration 3- 

fit) Trickling Filt e r High Rat e 7 

Standard Rat e # 

Pack e d Tow e r & 

fiii) Biological A e rat e d Filt e r or A e rat e d Biological Filt e r 4-0 

(4v) Aerat e d Lagoons +0 

(-v4 Rotating Biological Contactors 40 

(v+) Sand Filt e rs int e rmittent biological 3 

r e circulating biological 3 

{¥if) Stabilization Lagoons & 

(viii) Claritl e r & 

(4^ Singl e stag e syst e m for combined carbonaceous r e moval of BOD and nitrog e nous 

r e moval by nitrification ( see d e finition No. 12) (Point s for this it e m hav e to b e in addition 
to it e m s (5) (a) (i) through (5) (a) (viii). utilizing th e e xt e nd e d a e ration proc e ss 

(s ee d e finition No. 3) 3 

utilizing oth e r than the extend e d a e ration proc e s s % 

{^ Nutrient additions to e nhanc e BOD r e moval & 

(^ Biological Cultur e ("Sup e r Bugs") addition to e nchanc e organic compound r e moval ^ 

{&) Nitrog e nou s Stag e 

(+4 A e ration High Purity Ox>gon Syst e m 30 

Diffu se d Air System +0 

M e chanical Air Sy s t e m (fix e d, floating, or rotor) % 

S e parate Sludg e R e a e ration -S- 

0+) Trickling Filt e r High Rat e 7 

Standard Rat e & 

Pack e d Tow e r %■ 



216 SORTH CAROLINA REGISTER July 15. 1998 13:2 



PROPOSED RULES 



(iii) Biological A e rat e d Filt e r or A e rat e d Biological Filt e r +0 

(iv) Rotating Biological Contactors +8 

(v^ Sand Filter int e rmitt e nt biological 3 

Recirculating biological 3^ 

(vi) Clorifi e r # 

(#) TERTIARY OR ADVANCED TREATMENT UNITS/PROCESSES 

(A) Activat e d Carbon B e ds 

without carbon r e g e n e ration # 

with carbon regeneration +§ 

(B) Powd e r e d or Granular Activat e d Carbon F ee d 

without carbon r e g e n e ration # 

with carbon r e g e n e ration 44 

(C) Air Stripping 4 

(D) D e nitriFication Proces s (separat e proc e ss) +0 

fE) El e ctrodialy s i s # 

(F) Foam S e paration # 

(5) Ion Exchang e 4 

(H) Land Application of Tr e at e d Efflu e nt ( see d e finition No. 22b)(not applicabl e for sand, grav e l. 

stone and oth e r similar mining op e rations) by high rat e infiltration 4 

(I) Microscr ee ns # 

{i) Phosphorus R e moval by Biological Proc es s es (S ee d e finition No. 26) 30 

(K) Polishing Ponds without aeration 2 

with a e ration # 

(fe) Post A e ration ca s cad e 

diffii se d or m e chanical 3 

(M^ R e v e rs e O s mo s is % 

(M) Sand or Mix e d M e dia Filt e r s — low rat e 3 

high rat e % 

(O) Tr e atm e nt proc es s es for r e moval of m e tal or cyanid e 44 

fP^ Tr e atm e nt proc e ss e s for r e moval of toxic mat e rial s oth e r than m e tal or cyanid e 44 

f?) SLUDGE TREATMENT 

(A^ Sludg e Dig es tion Tank ■ H e at e d 40 

A e robic 4 

Unh e at e d i 

(6) Sludg e Stabilization (ch e mical or th e rmal) 4 

(€) Sludg e Dr>'ing B e ds — Gravity 3 

Vacuum Assist e d 4 

fD) Sludg e Elutriation 4 

fE) Sludg e Condition e r (ch e mical or th e rmal) 4 

fF) Sludg e Thick e n e r (gravity) 4 

^G) Dissolv e d Air Flotation Unit [not applicabl e to a unit rat e d as (3) (i)] 8 

(44) Sludg e Gas Utilization (including gas storage) 3 

{\) Sludg e Holding Tank — A e rat e d 4 

Non a e rat e d 3 

(4) Sludg e Incin e rator (not including activat e d carbon regeneration) 40 

(4v) Vacuum Filt e r. C e ntrifug e or Filt e r Press or oth e r s imilar d e wat e ring d e vic es 40 

{%) RESIDUALS UTILIZATION/DISPOSAL (including incin e rat e d a s h) 

(A) Lagoon s 3 

f&) Land Application (surfac e and subsurfac e )( see d e finition 22a) by contracting to a land 

application op e rator or landfill operator who holds the land application p e rmit or landfill permit .... 3 

fG) D e dicat e d Landfill e d (burial) by th e permitt ee of th e wast e wat e r tr e atm e nt facility 4 

(9) DISINFECTION 

{A) Chlorination 4 

(B) D e chlorination 4 

{€) Ozone 4 

(O) Radiation 4 

(4^ CHEMICAL ADDITION SYSTEM(S) (s ee d e finition No. 0) [not applicabl e to ch e mical additions 
rat e d as It e m (3) 0), (5) (a) (xi). (6) (a), (6) (b).(7) (b). (7) (o). (9) (a). (9) (b). or (9) (c)] 



13:2 NORTH CAROLINA REGISTER July 15, 1998 217 



PROPOSED RULES 



5 points e ach: 

List ^ 

^ 

^ 

& 

{W, MISCELLANEOUS UNITS/PROCESSES 

Holding Ponds. Holding Tanks or S e ttling Ponds for Organic or Toxic Mat e rials including 
wa s t es from mining operations containing nitrogen or phosphorous compounds in amount s 

significantly gr e at e r than is common for dom e stic wast e wat e r 4 

Efflu e nt Flow Equalization (not applicabl e to storage basins which ar e inh e r e nt in land 

application sy s t e m s ) 3 

Stag e Discharg e (not applicabl e to s torag e ba s in s inh e r e nt in land application syst e ms) % 

Pumps i 

Stand By Pow e r Supply 3^ 

Th e rmal Pollution Control D e vic e 3 

TOTAL POINTS 



^ 






CLASSIFICATION 



Class I 5 25 Points 

Cla ss II 26 50 Points 

Clas s III 51 65 Points 

Class IV 66 Up Points 



Faciliti e s having a rating of on e through four points, inclusiv e . 

do not r e quir e a c e rtifi e d op e rator. Classification of all oth e r 

faciliti es r e quir e s a comparable grad e op e rator in r e sponsible 

charg e . 

Th e following sy s t e ms shall b e assign e d a Class 1 cla s sification- 



Faciliti e s having an activat e d sludg e proc e ss will b e assign e d a 
minimum classification of Class II. 

Facilities ha\ th g tr e atm e nt proc es s e s for th e r e moval of m e tal or 
cyanid e will b e assign e d a minimum classification of Class II. 
unl e ss th e fiow is of a significant quantity or th e t e chnology is Faciliti e s having tr e atm e nt process e s for th e biological removal 



unusually compl e x, to r e quir e consid e ration by th e Commis s ion 

on a ca se by ca se basis: 

Oil ' wat e r — S e parator — Syst e ms — consisting — enly — ef 

physical s e paration, pump s and dispo s al: 

S e ptic TanL'Sand Filt e r Syst e ms consisting only of 

se ptic tanks, dosing apparatus, pumps, sand filt e rs. 

disinf e ction and disposal: 

Lagoon — Syst e ms — con s isting — only — of pr e liminary 

tr e atm e nt, lagoons, pumps, disinf e ction, n e c e ssary 

ch e mical tr e atment for alga e or nutri e nt control, and 

di s charg e : 

Clos e d loop R e cycl e Syst e ms: 

Groundwat e r R e m e diation S> st e ms consisting only of 

pumps, air stripping, carbon adsorption, disinf e ction 

and disposal: 

Fi s h farms with discharg e to surfac e wat e rs: 

Wat e r Plant sludg e handling and back wash water 

tr e atm e nt: 

S e afood — proc es sing — con s i s ting — of s creening — and 

dispo s al . 

Singl e family di s charging syst e ms with th e e xc e ption 

of A e robic Tr e atm e nt Units, will be classified if 

p e rmitt e d after July 1 . 1 0Q3 or if upon insp e ction h\ th e 

Division, it is found that th e s yst e m is not b e ing 

adequateK operated or maintain e d. Such sy s t e m s will 

b e notifi e d of the cla s sification or r e clas s ification by 

th e Commission, in writing. 



of phosphorus will bo assign e d a minimum clas s ification of 
Cla s s III. 

Authority G.S. 90 A- 37. 

.0004 DEFINITIONS 

The — following — d e finition s — shaH — apply — throughout — this 
Subchapt e r: 

f4 Activat e d Carbon B e ds. A physical/ch e mical m e thod 
for r e ducing solubl e organic mat e rial from wast e wat e r 
e fflu e nt: Th e column typ e b e ds us e d in this m e thod 
will hav e a flow rat e varying from two to e ight gallons 
p e r minute p e r squar e foot and mav b e e ith e r upflov i 
or downflow carbon beds. Carbon may or ma> not b e 
r e g e n e rat e d on th e wast e wat e r tr e atment plant sit e : 

(34 A e rat e d Lagoons. — A ba s in in which all solids ar e 
maintain e d in susp e nsion and by which biological 
oxidation or organic matt e r is r e duc e d through 
artificially acc e l e rat e d transf e r of ox>g e n on a 
flow through basi s : 

{^ A e ration. — A proc e ss of bringing about intimat e 
contact b e tw ee n air or high purity oxyg e n in a liquid 

by — spraying. — agitation — er — diffu s ion. Ext e nded 

A e ration. — An activated sludg e proc ess utilizing a 
minimum hydraulic detention tim e of 1 8 hours: 

H-) Agriculturally managed site. An\ sit e on which a crop 
is produc e d, manag e d, and harv e st e d (Crop includ e s 
grass e s, grains, tr ee s, e tc); 



218 



"^^ 



yORTM CAROLINA REGISTER 

IB 



July 15, 1998 



13:2 



PROPOSED RULES 



(^ Air Stripping. A proc e ss by which th e ammonium ion 
is — first — convert e d — te — dissolv e d — ammonia — (pH 
adju s tment) with th e ammonia then r e l e as e d to the 
atmosph e r e by physical means; or oth e r similar 
proc e ss e s which r e mov e p e trol e um products such as 
b e nz e n e , tolu e ne, and xyl e n e ; 

(6) Carbon R e gen e ration. Th e r e g e n e ration of exhaust e d 
carbon by th e us e of a furnace to provid e e xtr e m e ly 



high t e mperatures which volatiliz e and oxidiz e th e 
absorb e d impuriti e s; 

(^ Carbonac e ous Stag e . A stag e of wast e water treatm e nt 
d e sign e d to achi e v e "s e condary" e fflu e nt limits; 

{%) C e ntrifug e . A m e chanical d e vice in which centrifugal 
forc e is us e d to s e parate solids from liquids or to 
s e parat e liquids of different d e nsiti e s; 

{^ Ch e mical — Addition — Syst e ms Th e addition of 

chemical(s) to wast e wat e r at an application point for 
purpo s es of improving solids r e moval. pH adjustm e nt, 
alkalinity control, e tc.; th e capability to e xp e rim e nt (3^ 
with diff e r e nt ch e micals and diff e r e nt application 
points to achi e v e a sp e cific r e sult will b e con s id e r e d 
on e syst e m; th e capability to add ch e mical( 5 ) to dual 



units will b e rat e d as on e syst e m; capability to add a 
ch e mical at diff e r e nt application points for diff e r e nt 
purpos e s will r e sult in th e s y s t e m s b e ing rat e d a s 
s e parat e syst e ms; 

fW) Ch e mical Sludg e Conditioning. — Th e addition of a 
ch e mical compound such as lim e , f e rric chlorid e , or a 
pohTn e r to w e t sludg e to coal e sc e th e mass prior to its 
application to a d e wat e ring d e vic e ; 

f44) Clos e d Cycl e Syst e ms. — Us e of holding ponds or 
holding — tanks — fef — containm e nt — ef — wast e wat e r 
containing inorganic, non toxic mat e rials from sand, 
grav e l, crush e d stone or other similar operations. 
Such syst e ms shall carry a maximum of two points 
r e gardless — of pumping — facilities — of — any — oth e r 
appurtenances; 

f-l-2) Combin e d R e moval of Carbonac e ou s BOD and 
Nitrogenous Removal by Nitrification — A singl e s tag e 
system r e quir e d to achi e v e p e rmit e fflu e nt limits on 
BOD — and — ammonia — nitrog e n — within — the — sam e 
biological r e actor; 

fl4) Dechlorination. Th e partial or compl e t e r e duction of 
r e sidual chlorin e in a liquid by any ch e mical or 
phy s ical proc e s s ; 



/ 1 Q\ 



D e nitrification — Proc e s 



-flie — conv e rsion — ef 



nitrate nitrog e n to nitrog e n gas; 

Electrodialysi s . — Proc e ss for r e moving ioniz e d salts 

from — wat e r — through — the — use — ef — ion s e lective 

ion exchang e m e mbran e s; 

Filt e r Pr e ss. — A proc e ss op e rat e d m e chanically for 

partially dewatering sludg e ; 

Foam Separation. Th e plann e d frothing of wastewater 

or wast e wat e r efflu e nt as a m e ans of r e moving 

e xc e ssiv e amounts of d e t e rg e nt mat e rials through the 

introduction of air in th e form of fin e bubbl e s; also 

call e d foam fractionation; 

Grit R e moval. Th e proce ss of r e moving grit and oth e r 



h e avy min e ral matt e r from wast e water; 
fW) Imhoff Tank. — A d ee p two story wast e wat e r tonic 
consisting of an upp e r sedim e ntation chamb e r and a 
low e r sludg e dig e stion chamb e r; 
(3^ Instrum e nt e d Flow M e asur e m e nt. — A device which 

indicates and records rat e of flow; 
(344 Ion Exchang e . A chemical proc e s s in which ions from 

two diff e r e nt mol e cul e s ar e e xchanged; 
(33) Land application: 

(a) Sludg e Disposal. A final s ludg e disposal method by 
which wet sludge may b e appli e d to land e ith e r by 
spraying on th e surface or by subsurfac e inj e ction 



(i. e .. chis e l plow); — [not applicabl e for typ e s of 
sludg e d e scrib e d in ( 1 1 ) of this Rul e ]; 
(b) Tr e at e d Efflu e nt. Th e proc e ss of spraying tr e at e d 
wast e wat e r onto a land ar e a or other m e thod s of 
application of wast e wat e r onto a land area a s a 



(34) 
(34) 
(3^ 

(3^ 

\-i-0 7 

(39) 



(^ 
(^ 



m e an s of final disposal or tr e atm e nt; 



M 



i . iicroscr ee n. A — lew — sp ee d. — continuously 

back - wash e d, rotating drum filt e r op e rating und e r 
gravity condition s as a polishing m e thod for r e moving 
su s p e nd e d solids from e fflu e nt; 
Nitrification Proc e ss. Th e bioch e mical conv e rsion of 
unoxidiz e d nitrog e n (ammonia and organic nitrog e n) 
to oxidiz e d nitrog e n (usually nitrat e ); 
Nitrog e nous Stag e . A s e parat e stag e of wast e wat e r 
tr e atm e nt d e sign e d for th e sp e cific purpos e of 
conv e rting ammonia nitrog e n to nitrat e nitrog e n; 
Phosphat e R e moval. Biological. — Th e r e moval of 
phosphorus from wast e wat e r by an oxic/anoxic 
proc e ss d e sign e d to e nhanc e luxur)' uptak e of 
phosphorus by th e microorganisms; 
Polishing Pond. A holding pond following secondary 
tr e atment with s uffici e nt d e t e ntion tim e to allow 
se ttling of fin e ly susp e nd e d solids; 

Post A e ration. A e ration following conv e ntional 

s e condary tr e atm e nt units to incr e as e e fflu e nt D.O. or 
for any oth e r purpo se ; 

Post A e ration. — (Cascad e ) — A polishing m e thod by 
which dissolv e d oxyg e n is add e d to th e e fflu e nt by a 
nonm e chanical. gravity m e ans of flowing down a 
s e ri e s of st e ps or w e irs; Th e flow occurring across th e 
st e ps or w e irs mov e s in a fairly thin lay e r and th e 
op e ration — of th e — cascad e — r e quir e s — ne — op e rator 
adjustm e nt; thus, z e ro points ar e assign e d e v e n though 
this is an essential st e p to meeting th e limits of th e 
di s charg e p e rmit; 

Powd e r e d or Granular Activat e d Carbon F ee d. — A 
biophysical carbon proc e ss that utilizes biological 
activity and organic ab s orption by u s ing powd e r e d or 
granular activated carbon; — Virgin or r e g e n e rat e d 
carbon is feed controlled into the system; 
Pr e a e ration. A tank constructed to provid e a e ration 
prior to primarv' tr e atm e nt; 

Pr e liminary Units. Unit op e rations in th e tr e atm e nt 
process, such as scr ee ning and comminution, that 
pr e par e th e liquor for subs e qu e nt major op e ration s ; 
Industrial Pr e tr e atm e nt. 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



219 



PROPOSED RULES 



(a) 









(^ 
^ 






Pr e tr e atment Unit. Industrial. Th e conditioning of 
a wast e at its source b e for e discharg e , to r e mov e or 
to n e utraliz e substanc e s injuriou s to s e w e rs and 
tr e atm e nt proc e s se s or to e ff e ct a partial r e duction in 
load on th e tr e atment proc ess which is op e rat e d by 



the — sam e — gov e rning — body — as 

treatm e nt plant being rated: 

Pre tr e atm e nt Program. Industrial — must b e a Stat e 

or EPA r e quir e d program to receiv e points on the 

rating sh ee t; 
Primary Clarifi e rs. — Th e fir s t se ttling tanks through 
which wastewat e r is pass e d in a tr e atm e nt works for 
th e purpose of removing s e ttl e abl e and s usp e nd e d 
solids and BOD which is associat e d with th e solids; 
Pumps. All influ e nt, e fflu e nt and in plant pumps; 

Radiation. Disinf e ction or st e rilization proc e s s 

utilizing devices e mitting ultraviol e t or gamma ray s ; 



(44) Sludg e Dig e stion. Th e proc e s s by which organic or 
volatil e matt e r and sludg e is gasifi e d, liqu e fi e d, 
min e raliz e d or conv e rt e d into more stable organic 
matt e r through th e activity of living organisms, which 
includ e s a e rat e d holding tanks; 
-the — wast e wat e r (45-) Sludg e Drying Bods. An area comprising natural or 

artificial lay e rs of porou s mat e rials upon which 



<4^ R e v e rs e O s mosi s . — A tr e atm e nt proc e ss in which a 
h e avy contaminat e d liquid is pressuriz e d through a 
m e mbran e forming n e arly pur e liquid fr ee from 
su s p e nd e d solids; 

(5^ Rotating Biological Contractors. A fix e d biological 
growth proc es s in which wa s tewater flows through 
tank s in which a s e ri e s of partially s ubm e rg e d circular 



dig e st e d s e wag e sludg e is dri e d by drainag e and 
e vaporation; 

(46) Sludge Elutriation. A proc e ss of sludg e conditioning 
m — which — c e rtain — constitu e nt s — are — r e moved — by 
succ es siv e washings with fr e sh wat e r or plant e fflu e nt; 

(4^ Sludg e Gas Utilization. Th e proc e ss of u s ing sewage 
gas for th e purpos e of heating building s , driving 
e ngin e s, etc.; 

(484 Sludg e Holding Tank (A e rat e d and Nona e rat e d). A 
tan]< utiliz e d for s mall wa s t e wat e r tr e atm e nt plants not 
containing a dig e st e r in which sludg e may be kept 
fr e sh, and sup e rnatant withdrawn prior to a drying 
m e thod (i. e . sludg e drying b e d s ); This may b e don e 
by adding a small amount of air simply to k ee p th e 
sludg e fr e sh, but not n e c e ssarily an amount that would 
b e r e quired to achiev e stabilization of organic matter. 
A nona e rat e d tank would simply b e u se d to d e cant 
sludg e prior to d e wat e ring and would not allow long 
periods (several days of detention) without r e sulting 
odor probl e ms; 

Sludg e Incin e rators. — A furnac e d es ign e d to bum 
sludg e and to r e move all moistur e and combustibl e 
mat e rials and r e duc e th e sludg e to a s terile ash; 
Sludg e Stabilization (Ch e mical or Th e rmal). — A 
proc e ss to mak e tr e at e d sludg e l e ss odorous and 
putr es cibl e . and to r e duc e th e pathog e nic organism 
cont e nt; This may b e don e by pH adjustm e nt, chlorin e 
do s ing, or by h e at tr e atm e nt; 

Sludg e Thick e n e r. A type of sedim e ntation tank in 
which th e sludg e i s p e rmitt e d to se ttl e and thicken 
through agitation and gravity; 
Stabilization Lagoon. A typ e of oxidation lagoon in 
which biological oxidation of organic matt e r is 
e ffect e d by natural transf e r of oxyg e n to th e wat e r 
from air (not a polishing pond); 
Stand By Pow e r Supply. On site or portabl e e l e ctrical 
g e n e rating e quipm e nt; 
Static Screens. — A stationary scr ee n d e sign e d to 

r e mov e s olids. including non biod e gradabl e 

particulat e (floatabl e solids, suspend e d solids and 
BOD reduction) — from municipal — and — industrial 
wast e water treatm e nt syst e ms; 
stabilization proc e ss wh e r e th e activat e d sludg e i s (^^ T e rtiary Tr e atm e nt. A stag e of tr e atm e nt following 



s urfac es ar e rotat e d; 

Sand Filt e rs: 

Intermitt e nt — Biological. Filtration of e fflu e nt 

following septic tanks, lagoons, or som e oth e r 
tr e atm e nt proc e ss in which further biodecomposition 
is exp e ct e d to produc e d e sir e d e fflu e nts: Hydraulic 
loading rat e s on th e s e filters are comput e d in gpd^ac 
and hav e a r e sulting low gpnv s f (l e ss than on e ); 
(b) R e circulating biological ■ th e sam e typ e of sand 
filt e r a s d e fin e d in Subparagraph (39) (a) of this 
Rul e with th e add e d capability to r e cycl e e fflu e nt 
back through the sand filt e r: 

Sand or Mix e d M e dia Filt e rs. A polishing proc e ss by 

which e fflu e nt limits ar e achi e v e d through a furth e r 

r e duction of susp e nd e d solids: 
low rat e gravity, hydraulically load e d filt e r with 
loading rat e s in th e on e to thr ee gpm sf rang e ; 






(b) high rat e a pr ess ur e , hydraulically load e d filt e r 

vs'ith loading rates in th e fiv e gpm/sf rang e ; At an\ 
rat e , th e loading rat e will e xc ee d thr ee gpm/sf; 

(44) S e condary Clarifi e r s . — A tank which follows th e 
biological unit of a tr e atm e nt plant and which has th e 
purpos e of r e moving sludg e s associat e d with th e 
biological tr e atm e nt units; 

(45) S e parat e Sludg e R e a e ration. — A part of th e contact 



(^ 
(#3) 

(^ 
(54) 



transf e rr e d to a tank and a e rat e d b e for e r e turning it to 
th e contact basin; 
(4^ S e ptic Tank. — A singl e story se ttling tank in which 



s e condary which is primarily for th e purpos e of 
e fflu e nt polishing; A s e ttling lagoon or sand or coal 
fllt e r might b e e mploy e d for this purpos e ; 



se ttl e d sludg e i s in contact with th e wa s t e wat e r (5^ Th e rmal — Pollution — Control — D e vic e . 7"^ — d e vic e 



flow ing through th e tank: shall not b e applicabl e for 
s e ptic tank syst e ms s e rving singl e family r e sidenc e s 
having capacity of 2.000 gallons or l e ss which 
discharg e to a nitrification field; 



providing for th e transf e r of h e at from a fluid flow ing 
in tub e s to another fluid outsid e the tubes, or vic e 
v e r s a; — of-, — oth e r — means — e^ — r e gulating — liquid 
t e mp e ratur e s: 



22(1 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 









Th e rmal Sludg e Condition e r. A conditioning proc e ss 
by which h e at is added for a protract e d p e riod of tim e 



no additional wast e wat e r tr e atment classification will be 
required. Wastewat e r treatm e nt in e xc e ss of th e se compon e nts 



to improve th e d e wat e rabilit>' of sludg e by th e will b e subj e ct to rating as a wastewater tr e atm e nt facility under 



solubilizing and hydraulizing of th e smaller and mor e 
highly hydrat e d sludge particl e s; 



Rul e .0002(b) of this S e ction. All syst e ms that ar e r e quir e d to 
hav e only a c e rtifi e d sub s urfac e op e rator und e r 1 5 A NCAC 1 8 A 



^%%) Toxic Mat e rials. — Thos e wast e s or combinations of .1961 shall be deem e d cla s sifi e d as s ubsurfac e syst e ms. Any 
wast e s, including dis e as e cau s ing ag e nt s which aft e r subsurfac e syst e m that has a wastewater tr e atm e nt facility 
discharg e and upon e xposur e , ing e stion, inhalation or r e quir e d to b e classifi e d und e r 15A NCAC 8 C .0002 and any 
assimilation into any organism, e ith e r dir e ctly from th e s ub s urfac e sy s t e m pr e viou s ly classifi e d by th e Commi s sion, will 
e nvironm e nt or indir e ctly by ing e stion through food r e c e iv e notification of th e classification or r e classification from 
chains. — wiH — caus e — d e ath, — di se a se , — b e havioral th e Commission- 
abnormaliti e s, canc e r, g e n e tic mutations, physiological 

malfiinctions (including malfunctions in reproduction) Authority G.S. 90A-37. 
or physical d e formation s , in such organisms or th e ir 
offspring: — Toxic materials includ e , by way of 

illu s tration and not limitation: l e ad, cadmium. 

chromium. — m e rcury. — vanadium. — ars e nic. — zine^ 

ortho nitro chlorob e nz e n e (ONCB). polychlorinat e d r e sidual s , biosolids or contaminat e d soil (on a d e signat e d sit e ). 



.0006 



CLASSIFICATION OF LAND 
APPLICATION SYSTEMS 



Faciliti e s p e rmitt e d for th e land application of sludg e . 



(PCBs) and dichlorodiph e nyl s hall b e clas s ifi e d as land application syst e ms and will be 

r e quir e d to hav e an op e rator in r e sponsibl e charg e who 
po ssesse s a c e rtificat e in land application/r e siduals op e ration. 

Authority G.S. 90A-37. 

CLASSIFICATION OF COLLECTION 
SYSTEMS 

aefe: — A low rat e trickling filt e r is on e which is Coll e ction syst e ms that ar e op e rat e d in conjunction with 



biph e nyb 

trichloro e thane (DDT): and any oth e r mat e rials that 

have or may h e r e aft e r b e d e t e rmin e d to hav e toxic 

properti e s : 

Trickling Filt e r. A biological tr e atm e nt unit consisting 

of a mat e rial such as brok e n ston e or rock ov e r which 

wast e wat e r is distribut e d: A high rat e trickling filt e r .0007 

is on e which is op e rat e d at b e tw ee n 10 and 30 mgd p e r 



d e sign e d to op e rat e at on e to four mgd p e r acr e : 



wast e wat e r tr e atm e nt faciliti e s p e rmitt e d to municipaliti e s. 



(60) Trickling Filt e r (Pack e d Tow e r). A plug flow typ e of r e gional faciliti e s or wat e r and s e w e r authoriti e s, public utiliti e s, 

op e ration in which wast e wat e r flows down through stat e own e d faciliti e s that ar e Class MI or Class IV and f e d e rally 

succ e ssiv e lay e rs of m e dia or flltrat e mat e rial: ov\Ti e d faciliti e s that ar e Class 11. Class HI or Class IV will b e 

Organic mat e rial is r e mov e d continually by th e activ e subj e ct to rating as a coll e ction syst e m. — Any collection syst e m, 

biological Fix e d growth in e ach successiv e layer. This regardl e ss of ownership, may be classifi e d as a collection syst e m 

m e thod may produc e "s e condary" quality e fflu e nt, or and will b e required to designat e an op e rator in r e sponsibl e 



may b e adapted to produc e a nitrifi e d e fflu e nt: 



charg e , in th e e v e nt that the Commission or its d e signees identify' 



(4+) Vacuum — Filt e rs, — C e ntrifug e s, — er — Fi l t e r — Presses. th e failur e to prop e rly op e rate or maintain the system. Th e 



D e vic e s which ar e d e sign e d to r e mov e e xc e s s wat e r 
from eith e r dig es t e d or undig e st e d s ludg e prior to 
disposal or furth e r tr e atm e nt. 

Authority G.S. 90A-37. 

.0005 CLASSIFICATION OF SUBSURFACE 

TREATMENT AND DISPOSAL SYSTEMS 

Faciliti e s which utiliz e s ubsurfac e tr e atm e nt and disposal of 
wast e wat e r s hall b e classifi e d as subsurfac e syst e ms. — AH 
subsurfac e s yst e ms p e rmitt e d und e r rul e s adopt e d by th e 
Environm e ntal Manag e m e nt Commission and thos e subsurfac e 
syst e ms p e rmitted und e r rul e s adopt e d by th e Commission for 
H e alth S e rvices, which r e quir e a c e rtified op e rator, shall be 
op e rat e d by an op e rator in r e sponsibl e charg e who poss e ss e s a 
c e rtificat e in subsurfac e sy s t e m op e ration. Conv e ntional septic 
tank syst e ms, consisting of only a s e ptic tank and nitrification 
field without pump s or other appurt e nanc e s, will not b e subj e ct 
to th e provisions of this Section. — If th e subsurfac e syst e m 
consists of se ptic tanks, pump tank s , s iphon or pump dosing 
syst e ms, s and filt e rs, gr e as e traps or gr e as e int e rc e ptors, or 
oil/wat e r s e parators and subsurface di s posal of th e wast e wat e r. 



following rating s yst e m will b e us e d to det e rmine the 
clas s ification of coll e ction sy s t e m s . 

(4) th e coll e ction syst e m will b e as s igned the s ame 

classification as th e curr e nt rating of th e wa s t e wat e r 

tr e atm e nt facility to which th e coll e ction s yst e m i s 

tributary: or 

the — coll e ction — syst e m — w+W — be — as s ign e d — the 



^ 



(^ 



classification bas e d on th e population se rv e d by th e 
coll e ction — syst e m as follow s , which e v e r would 
provid e th e low e r classification: In th e e v e nt that th e 
population — s e r\' e d — cannot — be — d e t e rmin e d. — the 
e quivalent population s e rv e d will b e calculat e d, u s ing 
the d e sign flow of th e tr e atm e nt plant and a flow of 95 
gallons p e r day per person. 
Population of 1 500 or l e ss Class I 
Population of 1501 15,000 Class 11 
Population of 15,001 50.000 Cla s s 111 
Population of 50.000 or mor e Cla s s IV 
Upon classification, th e Commi s sion may es tablish a 
dat e , by which, th e p e rmitt ee must d e signat e an 
op e rator of th e appropriat e grade to op e rat e th e 
coll e ction s y s t e m. 



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221 



PROPOSED RULES 



Authority G.S.90A-37. 

.0008 CLASSIFICATION OF SPRAY IRRIGATION 
SYSTEMS 

Faciliti e s which utilize th e spray irrigation of wast e wat e r s hall 
bo classifi e d as s pray irrigation syst e m s . If th e spray irrigation 
syst e m consists only of preliminary tr e atm e nt, lagoons, s e ptic 
tanks, pump tanks, pumps, gr e as e traps or gr e as e int e rc e ptor s , 
oil/water se parators, sand filt e rs, disinf e ction, and ch e mical 
treatment for nutri e nt or alga e control and the spray irrigation of .0005 
the wastewat e r, no additional wast e water tr e atm e nt classification 
will b e requir e d. — Wast e wat e r tr e atment in e xc e ss of those 
compon e nts, will b e s ubj e ct to rating und e r Rul e .0002(b) of this 
S e ction. 



r e primand shall b e d e liver e d p e rsonally or by c e rtifi e d mail. A 
copy of th e l e tt e r will b e kept in the op e rator's fil e and a copy 
will b e s e nt to th e op e rator's e mploy e r. Th e op e rator will be 
giv e n th e opportunity to put a l e tter of r e buttal into th e file when 
a r e primand has b ee n issu e d. 

Authority G.S. 90A-41: I43B-300: 150B-3; 150B-23; 150B-38: 
150B-52. 



NOTIFICATION TO ENVIRONMENTAL 
MANAGEMENT COMMISSION 



Th e Commission shall notify' th e Environm e ntal Manag e m e nt 
Commis s ion of th e failur e of an ovsn e r of a water pollution 
control syst e m to provid e a c e rtifi e d op e rator or of th e 
r e vocation or r e linquishm e nt of th e c e rtificat e of any op e rator. 

Authority G.S. 90A-35: 90A-43; 143B-300. 

.0006 RECERTIFICATION FOLLOWING 

REVOCATION OR RELINQUISHMENT 

{&) Aft e r r e vocation or r e linqui s hm e nt has been effectiv e for 
Th e C e rtification Commission shall clas s ify' wat e r pollution a p e riod of not l ess than 270 days, a p e r s on ma>' apply in writing 

for r e c e rtification by th e Commi s sion, including in his p e tition 
any r e l e vant facts conc e rning chang e s to conditions under which 
revocation or r e linquishm e nt occurr e d. Such facts shall s how 
cl e arly that applicant will comply with th e laws and r e gulations. 

{b) Within 120 days following r e c e ipt of an application for 
r e c e rtification. th e Commission will notifi' th e applicant by l e tt e r 
of its d e ci s ion to d e ny or grant e xamination e ligibility in 



Authority G.S. 90.4-37. 

SUBCHAPTER 8D - POWERS AND ENFORCEMENT 

.0002 CLASSIFICATION OF WATER 

POLLUTION CONTROL SYSTEMS 



control systems in accordanc e with th e rating sy s t e m se t out in 
Subchapt e r 8 C of this Titl e . 

Authority G.S. 90.4-35: 90.4-3'': 90.4-43: 90.4-44: I50B-23. 

.0004 REVOCATION, RELINQUISHMENT OR 
INVALIDATION OF CERTIFICATION 



(a) Th e C e rtification Commission may r e vok e or su s p e nd th e accordanc e with proc e dur e s s e t out — 15A NCAC 8B .0102. 
certification of an op e rator in accordanc e with th e provisions of Additional e ligibility requir e m e nts including a show caus e 
G.S. QOA 4 1. — Prior to th e Commis s ion' s taking action on a conf e r e nc e may b e impo se d by th e Commission as it d e em 



KJ.u. > yji I r 1 . 1 I ]ui — nj till- ^_ vjiiiim jjiuu .3 Lulling. a^.injii wii u v.\Jiii\-i V.L11.V. iiiu v C7^ iiii[juj^u uv ink. i^uiiiiiiijjiuii uj 11 Lj^.^iii.3 

propos e d r e vocation or susp e nsion, th e op e rator shall b e giv e n appropriat e . — Eligibility will only b e grant e d if th e r e i s 

an opportunity to submit a writt e n stat e m e nt and pr e s e nt oral substantial e vid e nc e that th e conditions l e ading to th e r e vocation 

argum e nt b e for e th e Commis s ion at a r e gularly s ch e dul e d or r e linquishm e nt hav e b ee n corr e ct e d. 



m ee ting. Notic e of th e m ee ting s hall b e d e liv e r e d p e rsonally or 
b\ c e rtifi e d mail at l e ast 15 days prior to th e m ee ting. 



(€-) R e c e rtification of a p e rson as a wast e wat e r tr e atm e nt plant 
op e rator shall — only occur by m e ans of application and 



{b^ Notic e of th e r e vocation or susp e nsion shall b e d e liv e r e d e xamination. — The examination s will not b e waiv e d. — The 
to th e op e rator p e rsonally or by c e rtifi e d mail at l e ast 20 da> s 



applicant s hall m ee t th e e ligibility r e quirements set forth in 15A 

3£ 



prior to th e e ff e ctiv e dat e of th e r e vocation or susp e nsion. Th e NCAC 8 B .0200 b e ginning with 15A NCAC 8 B .0201 e xc e pt 

that applicant shall not b e eligibl e for 15A NCAC 8 B .0206. 
Op e rational e xp e ri e nc e prior to revocation or r e linquishm e nt 



notic e shall contain th e all e g e d facts or conduct upon which th e 
r e vocation or susp e nsion i s bas e d and shall inform th e op e rator 
of th e opportunit\' to cont e st th e action. Th e proc e dur e s to b e 
follow e d shall b e a s s p e cifi e d in 15A NCAC 8 A .0302. 

(e) C e rtification may b e r e linquish e d by submi s sion to th e 
C e rtification Commis s ion of th e original c e rtificat e and a 
notariz e d s tat e m e nt of r e linqui s hm e nt. 

{4) Th e C e rtification Commission may invalidat e th e 
c e rtification of an op e rator for nonpaym e nt of the annual 
r e n e wal f ee in accordanc e with G.S. QOA 4 0. — Notic e of thi s 
action shall b e d e liv e r e d by c e rtifi e d mail or p e rsonal se r\'ic e at 
l e ast 30 day s prior to th e e ff e ctiv e dat e of th e invalidation. If th e 
appropriat e r e n e wal f ee s and th e r e quir e d lat e f ee s ar e r e c e iv e d 
within thi s p e riod, th e c e rtificat e will r e main activ e . In ord e r for 
a c e rtificat e to b e r e validat e d, the appropriate r e n e wal f ee s and 
lat e f ee s must b e paid. 

fe) Th e C e rtification Commission may issu e a writt e n 
r e primand to an op e rator in accordanc e with G.S. QOA 4 0. Th e 



will not apply as e ligibility for futur e r e c e rtification. Applicant 
shall not b e e ligibl e for t e mporary' c e rtification und e r 15A 
NCAC 8 8 .0 4 4 . 

fd^ Upon notification of th e Commission's d e cision to d e n>' 
e ligibility, th e applicant ma>' app e al th e d e cision pursuant to th e 
proc e dur e s contain e d in Articl e 3 A of Chapt e r 150B of th e 
G e n e ral Statut e s. 



.4uthority G.S 90.4-39: 150B-3: 150B-38. 

CHAPTER 8 - WATER POLLUTION 

CONTROL SYSTEM OPERATORS 

CERTIFICATION COMMISSION 

SUBCHAPTER 8G - AUTHORITY: ORGANIZATION: 
STRUCTURE: DEFINITIONS AND HEARING 



222 

iiiiiiiin 



NORTH CAROLINA REGISTER 



Julv 15, 1998 



13:2 



PROPOSED RULES 



PROCEDURES 

SECTION .0100 - GENERAL PURPOSE AND 
DEFINITIONS 

.0101 PURPOSE 

The purpose of these Rules is to: 

(1) protect the public health of the citizens of the State; 

(2) conserve, protect, and maintain the quality of the 
water resources of the State as assigned by the North 
Carolina Environmental Management Commission: 

(3) protect the public investment in water pollution 
control systems; 

(4) provide for the classification of water pollution 
control systems; and 

(5) establish the procedures for the examination and 
certification of operators of water pollution control 
systems. 

Authority- G.S. 90. 

.0102 DEFINITIONS 

(a) "Activated sludge" shall mean a biological wastewater 
treatment process in which predominantly biodegradable 
pollutants in wastewater are absorbed, or adsorbed, by living 
aerobic organisms and bacteria in an aerated suspension which 
is separated from the treated wastewater gravimetrically. 

(b) "Actual experience" shall mean the time working as a 
water pollution control system operator or operator in 
responsible charge. An operator is an individual whose principal 
job responsibility is the actual physical operation of process 
equipment and systems at a water pollution control system. The 
term does not apply to persons who have primary job 
responsibilities such as laboratory testing, facility and equipment 
maintenance, administrative support, or direct, or indirect, 
supervision. 

(c) "Approved training" shall mean any training, required in 
order to be eligible for an examination or to meet continuing 
education requirements, that has been approved by the 
Commission. 

(d) "Back-up ORC" shall mean Back-up Operator in 
Responsible Charge and refers to the operator who is designated 
to act as surrogate for the Operator in Responsible Charge 
(ORC) when the ORC is absent from their professional duties as 
set forth in G.S. 90A-44. 

(e) "Basic sciences" shall mean courses in agronomy, biology, 
botany, chemistry, engineering, environmental health and 
sciences, geology, math, physics, soil science, and zoology 
offered by an accredited college or university. 

(f) "Chemical process" shall mean a water pollution control 
system process consisting exclusively of the addition of 
chemicals to treat wastewaters and typically consisting of a three 
phase process involving coagulation, flocculation. and 
liquid/solids separation. 

(g) "Collection system" shall mean a continuous connection 
of pipelines, conduits, pumping stations and other related 
constructions or devices used to conduct wastewater to a water 
pollution control system. 



(h) "Commission" shall mean the Water Pollution Control 
System Operators Certification Commission created by G.S. 
143B-300. 

£i} "Contract operations firm" shall mean any commercial 
water pollution control system operations firm which contracts 
with the oyvner of a water pollution control system to provide 
operational and other services for the system pursuant to G.S. 
90A-45(a). 

{jj "Contract operator" shall mean any certified water 
pollution control system operator who contracts with the oyvner 
of a water pollution control system to provide operational and 
other services for the system pursuant to G.S. 90A-45(a). 

(k) "Currently valid certificate" shall mean the certificate of 
an operator that has all required renewal fees paid, all required 
continuing education training completed, and has not been 
revoked, relinquished, invalidated, or suspended. 

£1} "Electrodialvsis system" shall mean a system utilizing a 
selective separation of dissolved solids process that is based on 
electrical charge and diffusion through a semipermeable 
membrane. 

(m) "Fixed groyvth" shall mean a biological wastewater 
treatment system in which the wastewater is treated by contact 
with a biological groyvth that is affixed to support media and 
includes systems such as trickling filters, rotating biological 
contactors, and biological tower treatment systems. 

(n) "GED" shall mean general educational development in 
reference to a high school diploma equivalency. 

(o) "Nonbiological" shall mean a process which utilizes 
physical and/or chemical processes to treat wastewater but does 
not include any biological processes. 

(p) "ORC" shall mean the individual designated by a person, 
firm, or corporation (municipal or private) owning or having 
control of a water pollution control system zs tlie operator of 
record of frie water pollution control system and who has 
primary responsibility for the operation of such system as 
defined in G.S. 90A-46. 

(q) "Owner" shall mean the person, firm, or corporation 
(municipal or private) owning or having control of a water 
pollution control system as described in G.S. 90A-44. 

(r) "Passing score" shall mean earning 70 percent of the 
available points on an examination administered by the 
Commission. 

(s) "Permanent certificate" shall mean the certificate of 
competency issued by the Commission to an individual as the 
result of frie individual obtaining a passing score on an 
examination administered by the Commission, or a certificate 
issued by reciprocity agreement by the Commission, and is 
subject to the provisions of G.S. 90A-40(a). 

(t) "Physical process" shall mean any water pollution control 
system process consisting of gravimetric sedimentation, flotation 
and/or filtration as the means of treatment. 

(u) "Reciprocity certificate" shall mean a certificate issued of 
the appropriate type and grade without examination to any 
person who is properly registered on the "National Association 
of Boards of Certification "Reciprocity Register and who meets 
all other requirements of these Rules as set forth in G.S. 90 A- 
40(b). 

(v) "Regional office" shall mean one of the seven local 



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223 



PROPOSED RULES 



offices of the Division of Water Quality located across the State. 

(w) "Residuals" shall mean any solid or semisolid byproduct 
that is produced by the treatment of wastewater in a water 
pollution control system. 

(x) "Reverse osmosis s\'stem" shall mean a system which 
utilizes solutions and semipermeable membranes to separate and 
treat wastewaters. 



(\) "Satisfactory completion" shall mean the attendance of at 
least 80 percent of the approved training. 

(z) "Temporal^ certificate" shall mean a certificate issued of 
an appropriate npe and grade, without examination, to any 
person emploN'ed as a water pollution control system operator 
when the Commission finds that the suppK' of certified 
operators, or persons with the training and experience necessary 
for certification, is inadequate and the situation meets the 
requirements set forth in G.S. 90A-40(e). 

(aa) "Ultrafiltration system" shall mean a system which 
utilizes a membrane filter process to remove pollutants from 
wastewater. 

(bb) "Water pollution control system" shall mean any system 



for the collection, treatment, or disposal of wastewater and is 
classified under the provisions of G.S. 90A-37. 

Authority- G.S. 90. 

SECTION .0200 - DUTIES AND 
RESPONSIBILITIES 



(a) The owner of a water pollution control system permitted 
by the Environmental Management Commission must: 

(1) designate one Operator in Responsible Charge (ORC) 
and one Back-up Operator in Responsible Charge 
(Back-up ORC) of the appropriate type and grade for 
the system as set forth in Rule .0201(a) of this 
Section; and 

(2) submit a signed letter to thie Commission, 
countersigned by the designated certified operators, 
designating the ORC and the Back-up ORC: 

(A) 60 calendar days prior to wastewater being 
introduced into a new, or expanded, system; or 

(B) within 120 calendar days following: 

tij receiving notification of a change in the 
classification of the system requiring the 
designation of a new ORC and Back-up 
ORC of the proper type and grade; or 

(ii) a vacancy in tlie position of ORC or 
Back-up ORC. 

(b) Upon the vacancy of the ORC position for a system, the 
owner of the system must notify' the appropriate regional office 
of tlie Division of Water Qualirs' of the vacancy, within 10 
working davs. If the 10 day notification was not made in 
writing, then within 20 working days of tfie vacancy written 
notification must be submitted to the regional office. 

Authority- G.S. 90. 



.0201 REQUIREMENTS FOR CERTIFIED 
OPERATORS 

(a) Owners of uater pollution control systems, permitted 
under rules adopted by tlTc Environmental Management 
Commission, shall designate operators, certified by tlie Water 
Pollution Control System Operators Certification Commission 
( WPCSOCC). of the appropriate type and grade for the s\'stem. 
and, for each s\stem. must designate: 

(1) one Operator In Responsible Charge (ORC) who 
possesses a currentK" valid certificate of the type and 
grade at least equivalent to the t\pe and grade of the 
system: and 

(2) one Back-up Operator in Responsible Charge (ORC) 
who possesses a currentK valid certificate of the type 
of tfie SN'stem and no more than one grade less than 
the grade of the ssstem. with the exception of single 
famiK residential systems \sith a design fiovs of less 
than 1.500 gallons perdaw 

(b) Ouners of vsater pollution control s\stems permitted 
under rules adopted by the Commission for Health Ser\ices. or 
a local board of health, shall designate certified water pollution 
control s\stem operators of the appropriate type and grade as 
specified in Section .0300 of these Rules and in 15A NCAC 
ISA .1961. Operators in Responsible Charge (ORCs) of these 
systems shall \ isit each s\stem in accordance with Rule .0204 of 
this Section. 

Authority G.S. 90. 

.0202 RESPONSIBILITIES OF SYSTEM OWNERS 



.0203 RESPONSIBILITIES OF CERTIFIED 
OPERATORS 

Certified operators shall: 

( 1 ) comply with all terms and conditions of their 
certification as set forth in these Rules; and 

(2) notify' the Commission, in wTiting. within 30 davs of 
any changes in their mailing address; and 

(3) be responsible for the renewal of their certification(s) 
as specified in Section .0700 of this Subchapter; and 

(4) comply with all statutes and rules regarding the 
operation of water pollution control systems. 

Authority- G.S. 90. 

.0204 RESPONSIBILITIES OF AN OPERATOR IN 
RESPONSIBLE CHARGE (ORC) 

An ORC of a water pollution control SNStem must: 

(1) possess a currentK valid certificate of the appropriate 
type and grade for the system; and 

(2) visit the system as often as is necessary to insure the 
proper operation of tlie system but in no case less 
frequently than specified in the following schedule: 
(a) biological grade I ssstems; weekly. 

(b} biological grade LL HI. and IV systems, other 
than those systems specified in Rule .0204(g) 
of tins Section; 5 da\s per week, excluding 
holida\s. 

(c) spra\ irrigation systems other than single 
family residential s\ stems; within 24 hours of 
the application of wastewater. 



124 



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July 15, 1998 



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PROPOSED RULES 



(d) land application of residuals systems; within 
48 hours of application of residuals. 

(e) collection systems; within 24 hours of a 
bypass. spilK or overflow of wastewater from 
the system. 

£f) single-family residential systems; twice per 

year with a six month interval between visits. 
(g) single-family residential aerobic treatment 

units (ATUs) with a treatment capacity of 1 500 

gallons per day or less; weekly, 
(h) subsurface systems; as required by 1 5 A NCAC 

18A.I96I. 
£ij nonbiological systems: 

£i} grade I systems, including, groundwater 
remediation systems; weekly 

(ii) grade II systems; daily. 
{jj nonconventional systems; as specified by the 

Commission based on the complexity of the 

system; and 

(3) operate and maintain the system efficiently and 
attempt to insure the compliance of the system with 
any permit(s) issued for the system as well as any 
other applicable local, state, and federal 
environmental permitting and regulatory 
requirements; and 

(4) certify, by signature, as to the validity of aH 
monitoring and reporting information performed on 
the system as prescribed in any permit issued for the 
system; and 

(5) document the operation, maintenance, and all 
visitation of the system jn a daily log that shall be 
maintained at the system; and 

(6) notify the owner of the system within 24 hours, and in 
writing within five calendar days, of any: 

(a) overflows from the system or any treatment 
process unit; or 

bypasses of the system or any treatment 
process unit; or 



tb) 



I 



piece of equipment or treatment process unit 
that is malfunctioning in such a way as to 
adversely affect effluent quality; and 

(7) notify the owner, in writing, of the need for any 
system repairs and modifications that may be 
necessary to insure the compliance of the system with 
all local, state, and federal environmental permitting 
and regulatory requirements; and 

(8) reside within reasonable proximity to the system in 
order to: 

(a) be readily available for consultations with the 
system owner; and 

(b) handle emergency situations; and 

(c) provide access to the facility by regulatory 
agencies for inspections; and 

£d} perform any other related matters which would 
necessitate the presence of the ORC; and 

(9) be responsible for developing and implementing a 
process control monitoring plan, based on the size and 
complexity of the system, which js sufficiently 



comprehensive to insure the proper operation of the 
system. A copy of the plan must be submitted to the 
owner of the system and a copy must be maintained 
on-site for review by regulatory personnel during 
inspections of the system. 

Authority G.S. 90. 

.0205 RESPONSIBILITIES OF A BACK-UP 

OPERATOR IN RESPONSIBLE CHARGE 
(BACK-UP ORC) 

A Back-up ORC: 

(1) may act as surrogate for the ORC. if they possess a 
currently valid certificate of the appropriate type and 
grade for the system, for a period not to exceed 1 20 
consecutive days when the ORC is absent due to: 

(a) the resignation of the ORC; or 

(b) personal or familial illness; or 

(c) vacation; or 

(d) nonwork related leave such as civil leave, 
educational leave, or worker's compensation 
leave; or 

(e) work related leave such as Commission- 
approved training, regulatory agency meetings. 
or professional association meetings. 

(2) must fulfill all of the requirements of Rule .0204 of 
this Section when acting as surrogate for the ORC. 

Authority G.S. 90. 

SECTION .0300 - CLASSIFICATION OF WATER 
POLLUTION CONTROL SYSTEMS 

.0301 APPLICABILITY 

(a) The purpose of this Section is to establish procedures for 
the classification of water pollution control systems. 

£b) Not withstanding the requirements in Rules .0302 through 
.0307 of this Section, the Commission may modify the grade of 
a water pollution control system when: 

(1) special conditions created by system design features. 
or inherent operational requirements, exist which 
make normal operation of the system more complex; 
21 

(2) upgrades or other modifications to a system are 
completed; or 

(3) changes in Commission classification rules are made. 
(cj In-plant processes, and related water pollution control 

equipment which are integral parts of direct industrial 
production, shall not be considered water pollution control 
systems for the purpose of this Section. 

Authority G.S. 90. 

.0302 CLASSIFICATION OF BIOLOGICAL 
WATER POLLUTION CONTROL 
TREATMENT SYSTEMS 

(a) The following discharging systems shall be assigned a 
classification of Grade i Biological Water Pollution Control 



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NORTH CAROLINA REGISTER July 15, 1998 



225 



PROPOSED RULES 



System unless the permitted flow, or operational complexity of 
the s\'stem. is sufficient to warrant special consideration bv the 
Commission: 

( 1) septic tank/sand filter systems; 

(2) biological lagoon systems; 

(3) constructed wetlands consisting of a septic tank, sand 
filter, wetland cells, disinfection, and assorted 
appurtenances. 

(b) Systems that utilize an activated sludge or fixed growth 
process with a permitted flow less than 0.5 million gallons p er 
day (mgd) shall be assigned the classification of Grade II 
Biological Water Pollution Control System. 

(c) Systems utilizing an activated sludge or fixed growth 
process with permitted flows of 0.5 through 2.5 million gallons 
per day (mgd) shall be assigned the classification of Grade 111 
Biological Water Pollution Control System. 

(d) Systems utilizing an activated sludge or fixed growth 
process with a permitted flow greater than 2.5 million gallons 
per day (mgd) shall be assigned a classification of Grade IV 
Biological Water Pollution Control System. 

(e) Any system receiving a classification of Grade II 
Biological Water Pollution Control System pursuant to 
Paragraph (b) of this Rule, that is required to achieve biological 
nutrient reduction, shall be assigned the classification of Grade 

III Biological Water Pollution Control System. 

(f) An\' system receiving a classification of Grade III 
Biological Water Pollution Control System pursuant to 
Paragraph (c) of this Rule, that is required to achieve biological 
nutrient reduction, shall be assigned the classification of Grade 

IV Biological Water Pollution Control System. 

Author in- G.S. 90. 



In the event that the population served cannot be 
determined, the equivalent population served shall be 
calculated by using the design flow of the system 
divided bv a flow of 95 gallons per day p er person. 



Authority G.S. 90. 



.0304 



CLASSIFICATION OF SPRAY 
IRRIGATION WATER POLLUTION 
CONTROL SYSTEMS 

(a) Systems which utilize spray irrigation for the reuse or 
disposal of wastewater shall be classified as spray irrigation 
water pollution control systems. Those systems which contain 
only preliminary treatment processes such as septic tanks, sand 
filters, oil/water separators, lagoons, storage basins, physical 
screening, or sedimentation processes shall not be subject to 
additional operator requirements as specified in Rules .0302 or 
.0306 of this Section. 



(b) Any spra\ irrigation system that has, as part of jts 
treatment process, systems other than those specified in 
Paragraph (a) of this Rule, shall be subject to additional 
classification as is deemed necessary by the Commission. 

Authority G.S. 90. 

.0305 CLASSIFICATION OF LAND APPLICATION 
OF RESIDUALS SYSTEMS 

Systems permitted and dedicated for the land application of: 

(1) residuals that are produced by a water pollution 
control system; or 

(2) contaminated soils; 

shall be classified as a land application of residuals system. 



.0303 CLASSIFICATION OF WATER POLLUTION 
CONTROL COLLECTION SYSTEMS 

(a) Water pollution control collection systems operated to 
convey wastewater to water pollution control s\ stems which are 
permitted or tributary to municipalities, regional water pollution 
control systems, water and sewer authorities, public utilities, or 
are a Grade II. Ill or IV state or federally owned system, shall be 
subject to classification in accordance with Rule ■0303(b) of this 
Section. Any collection system, regardless of ownership, mav 
be classified and required to designate an ORC and a Back-up 
ORC if the Commission determines that the system is not being 
operated and maintained in a proper manner yvhich prevents the 
escape of wastewater from the system into the environment. 

(b) Collection systems shall be assigned a classification that 

in 

(1) the same as the grade of the biological water pollution 
control system to which the collection system is 
tributary ; or 

(2) based on the population served by the collection 
system in accordance with the following chart, 
whichever provides the lower grade: 

(A) 1.500 or less Grade 1; 

{B} 1.501 to 15,000 Grade II; 

IQ 15,001 to 50,000 Grade III; 

(D) 50,001 or more Grade IV. 



Authority G.S 90. 

.0306 CLASSIFICATION OF NONBIOLOGICAL 
WATER POLLUTION CONTROL 
TREATMENT SYSTEMS 

(a) Any water pollution control system, including systems 
designed for the remediation of contaminated groundwater, that 
utilizes an exclusively physical, nonbiological process to treat 
wastewaters, with the exception of reverse osmosis, 
electrodialysis. and ultrafiltration systems, shall be classified as 
a Grade I Nonbiological Water Pollution Control Sy stem. 

(b) Any nonbiological water pollution control system that 
utilizes a chemical process to treat wastewaters, including those 
systems whose treatment processes are augmented by physical 
processes, shall be classified as a Grade II Nonbiological Water 
Pollution Control Sy stem. 

(c) Any nonbiological water pollution control system that has. 
as part of its treatment process, a biological water pollution 
control system that may be classified under Rule .0302 of this 
Section shall be subject to additional classification as a 
biological water pollution control system. 

Author it}- G.S. 90. 

.0307 CLASSIFICATION OF SYSTEMS 



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PERMITTED BY THE COMMISSION 
FOR HEALTH SERVICES 

(a) Systems which utilize the soils for the on-site treatment 
and disposal of wastewater shall be classified as subsurface 
water pollution control systems. 

(b) Conventional septic tank systems, consisting of only a 
septic tank and nitrification field without pumps or other 
appurtenances, shall not be subject to classification. 

(c) Any subsurface water pollution control system that is 
required to have a certified operator under 15A NCAC 18A 
. 1 96 1 shall be deemed classified as a subsurface water pollution 
control system. 

(d) Any subsurface water pollution control system that has as 
part of its treatment process a water pollution control system that 
may be classified under Rules .0302 through .0307 of this 
Section may be subject to additional classification. If the 
subsurface system consists only of septic tanks, pump tanks, 
siphon or pump dosing systems, sand filters, grease traps or 
grease interceptors, or oil/water separators, and subsurface 
disposal of the wastewater, no additional classification will be 
required. 

Authority G.S. 90. 

.0308 CLASSIFICATION OF NON 

CONVENTIONAL WATER POLLUTION 
CONTROL TREATMENT SYSTEMS 

The Commission may classify any nonconventional water 
pollution control system. A nonconventional water pollution 
control system is defined as a water pollution control system that 
is receiving wastewater which has distinctly different 
characteristics from typical domestic wastewater or is a water 
pollution control system which contains treatment processes that 
' are sufficiently different from the conventional treatment 
processes classified in Rules .0302 through .0306 of this 
Section. 

Authority' G.S. 90. 

SECTION .0400 - ELIGIBILITY REQUIREMENTS 
FOR EXAMINATIONS 

.0401 GENERAL REQUIREMENTS 

(a) An applicant for certification as an operator of any water 
pollution control system designed for the collection or treatment 
of wastewater must meet the following criteria and possess the 
knowledge and abilities listed as they relate to the specific type 
of system for which certification is being sought and shall, at a 
minimum, include: 

(1) a high school diploma or a general educational 
development (GED) equivalent; 
be at least 1 8 years of age; 

a general knowledge of typical wastewater 
characteristics and treatment processes; and 
the ability to: 

(A) read and understand the statutes and rules 
which govern water pollution control system 
operators and the operation of the type of 



£4j 



system for which certification is being sought; 

(B) perform mathematical calculations required to 
operate the system for which certification is 
being sought; 

(O complete and maintain logs and regulatory 
reporting forms required to document the 
proper operation of the system; and 

(D) a knowledge of the equipment employed in the 
operation of the type of system for which 
certification is being sought along with the 
ability to describe the general maintenance 
requirements for such equipment. 

(b) An applicant who has failed to achieve a passing score on 
a specific type and grade of examination after three consecutive 
attempts must: 

(1) attend, and satisfactorily complete, an approved 
training program of the same type and grade as the 
certification being sought; and 

(2) provide verification, in the form of a certificate of 
completion or other such documentation, of the 
satisfactory completion of the required training with 
any subsequent application made to the Commission 
to sit for the examination. 

(c) An applicant for certification shall not have had any 
certification revoked by the Commission within the 730 calendar 
day period prior to the date of the application for certification. 

(d) An applicant for certification shall not be allowed to sit 
for any examination offered by the Commission during the 
period of a suspension of any certification held by the applicant 
with the Commission. 

AuthormG.S. 90. 

.0402 ELIGIBILITY REQUIREMENTS FOR 
BIOLOGICAL WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

Eligibility for certification as a Biological Water Pollution 
Control System Operator shall be based on the following 
qualifications: 

(1) for Grade \ certification, the applicant must have 
successfully completed an approved training school 
for Grade 1 Biological Water Pollution Control 
System operators. 

(2) for Grade II certification, the applicant must: 

(a) hold a currently valid North Carolina Grade 1 
Biological Water Pollution Control System 
Operator certificate; and 

(b) have six months of actual experience at a 
Grade 11. or higher, biological water pollution 
control system; and 

(c) have successfully completed an approved 
training school for Grade II Biological Water 
Pollution Control System operators. 

(3) for Grade III certification, the applicant must: 

(a) hold a currently valid North Carolina Grade II 
Biological Water Pollution Control System 
Operator certificate; and 

(b) have successfully completed an approved 



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227 



PROPOSED RULES 



training school for Grade 111 Biological Water 
Pollution Control System operators; and 
(jj have two years of actual experience at a 
Grade If, or higher, biological water 
pollution control system, or 
(ii) be a graduate of a two or four year 
college or university' and have taken. 
and passed, a minimum of six courses in 
the basic sciences and have 18 months 
of actual experience at a Grade 1]^ or 
higher, biological water pollution 
control system. 
(4) for Grade IV certification, the applicant must: 

(a) hold a currently valid North Carolina Grade III 
Biological Water Pollution Control System 
Operator certificate; and 

(b) have successfully completed an approved 
training school for Grade IV Biological Water 
Pollution Control System operators; and 

(i) have three years of actual experience at 
a Grade ITL or higher, biological water 
pollution control system, or 

(ii) be a graduate of a two or four year 
college or university and have taken. 
and passed, a minimum of six courses in 
the basic sciences and have two years of 
actual experience at a Grade III, or 
higher, biological water pollution 
control system. 

Author in- G.S. 90. 



.0403 ELIGIBILITY REQUIREMENTS FOR 
WATER POLLUTION CONTROL 
COLLECTION SYSTEM OPERATORS 

Eligibility for certification as a Water Pollution Control 
Collection System Operator shall be based on the following 
qualifications: 

(1) for Grade I certification, the applicant must: have 
successfully completed an approved training school 
for Grade 1 water pollution control collection s\stem 
operators. 

(2) for Grade II certification, the applicant must: 

(a) hold a currently valid North Carolina Grade I 
Water Pollution Control Collection System 
Operator certificate; and 

(b) have six months of actual experience in water 
pollution control collection system operations; 
and 

(c) have successfully completed an approved 
training school for Grade H water pollution 
control collection ssstem operators. 

(3) for Grade III certification, the applicant must: 

(a) hold a currently valid North Carolina Grade II 
Water Pollution Control Collection System 
Operator certificate; and 

(b) have successfully completed an approved 
training school for Grade III water pollution 



control collection system operators, and 
tij have two years of actual experience in 
water pollution control collection 
system operations, or 
(ii) be a graduate of a two or four college or 
university and have taken, and passed, a 
minimum of six courses in a field 
directly related to the construction- 
operation, and/or maintenance of a 
collection system, e.g. civil, mechanical. 
or environmental engineering, and have 
one year of actual experience m the 
operation of a water pollution control 
collection system. 
(4) for Grade IV certification, the applicant must: 

(a) hold a currently valid North Carolina Grade III 
Water Pollution Control Collection System 
Operator certificate; and 

(b) have successfully completed an approved 
training school for Grade 111 water pollution 
control collection system operators, and 

£ij have three years of actual experience in 
water pollution control collection 
system operations, or 

(ii) be a graduate of a two or four college or 
university and have taken, and passed, a 
minimum of six courses in a field 
directly related to the operation and 
maintenance of a collection svstem. e.g. 
civil, mechanical, or environmental 
engineering, and have two years of 
actual experience in the operation of a 
water pollution control collection 
system. 

Author in- G.S. 90. 



.0404 ELIGIBILITY REQUIREMENTS FOR LAND 
APPLICATION OF RESIDUALS OPERATORS 

An applicant for certification as a Land Application of 
Residuals Operator shall have satisfactorily completed an 
approved land application of residuals operator training school 
and: 



in 

t2J 



have one year of actual experience in the land 
application of residuals; or 

be a graduate of a two or four year college, or 
university, and have taken, and passed, a minimum of 
six courses in the basic sciences. 



Author in- G.S. 90. 



.0405 



ELIGIBILITY REQUIREMENTS FOR 
NONBIOLOGICAL WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

Eligibilirs for certification as a Nonbiological Water Pollution 
Control System Operator shall be based on the following 
qualifications: 

(1) for the Grade I have successfully completed an 



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PROPOSED RULES 



approved training school for Grade \ Nonbiological 
Water Pollution Control System Operators. 
£2} for the Grade II: 

£a} possess a currently valid Grade I Nonbiological 

Water Pollution Control System Operator 

certificate; and 

(b) have one year of actual experience at a Grade 
II Nonbiological Water Pollution Control 
System: and 

(c) have successfully completed aQ approved 
training school for Grade II Nonbiological 
Water Pollution Control System Operators. 

Authority G.S. 90. 

.0406 ELIGIBILITY REQUIREMENTS FOR 

SPRAY IRRIGATION WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Spray Irrigation Water 
Pollution Control System Operator shall have satisfactorily 
completed an approved spray irrigation water pollution control 
system operator training school and: 

(1) have one year of actual experience in the operation of 
a spray irrigation water pollution control system; or 

(2) be a graduate of a two or four year college or 
university and have taken, and passed, a minimum of 
six courses in the basic sciences; or 

(3) be a private homeowner who intends to operate only 
their own domestic spray irrigation water pollution 
control system. 

Authority G.S. 90. 

.0407 ELIGIBILITY REQUIREMENTS FOR 
SUBSURFACE WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Subsurface Water Pollution 
Control System Operator shall have successfully completed an 
approved subsurface water pollution control system operator 
training school and: 

(1) have one year of actual experience in the operation of 
a subsurface water pollution control system: or 

(2) be a graduate of a two or four year college or 
university and have taken, and passed, a minimum of 
six courses in the basic sciences; or 

(3) be a private homeowner who intends to operate only 
their own domestic subsurface water pollution control 
system. 

Authority G.S. 90. 

.0408 ELIGIBILITY REQUIREMENTS FOR 
OPERATOR IN TRAINING (OIT) 
CERTIFICATION 

(a) The Commission may allow an applicant for the biological 
water pollution control system operator certificate, or the water 
pollution control collection system operator certificate, to take 
the examination if the individual has met all of the prerequisite 



education and certification requirements but has yet to meet the 
actual experience requirement. 

(b) Upon achieving a passing score on the examination, the 
applicant shall be issued an Operator In Training (OIT) 
certificate of the same type and grade as the examination. 

(c) The OIT certificate does not qualify the applicant to be 
designated as the ORC or Back-Up ORC of a system. 

(d) OIT certificates shall be renewed annually as stipulated in 
15ANCAC 8G .070I. 

Authority G.S. 90. 

.0409 ELIGIBILITY REQUIREMENTS FOR 
CONDITIONAL WATER POLLUTION 
CONTROL SYSTEM OPERATORS 

An applicant for certification as a Conditional Water Pollution 
Control System Operator must successfully complete an 
approved training program for the operation of the water 
pollution control system if required by the Commission. 

.Authority G.S 90. 

SECTION .0500 - CERTIFICATION BY 
EXAMINATION 

.0501 APPLYING FOR EXAMINATION 

(a) All applications for examination submitted to the 
Commission must be: 



ill 

12} 



submitted on an approved application form; and 
accompanied by the a ppropriate nonrefundable 
application fee; and 

completed in entirety with all required information, 
documentation, and signatures provided; and 
postmarked at least 30 days prior to the scheduled 
date of the examination. 

(b) Upon receipt of an application by the Commission, the 
application shall be reviewed for completeness and a 
determination as to the eligibility of the applicant to sit for the 
requested examination will be made. 

(c) Each applicant shall be notified, in writing, of their 
eligibility to sit for the requested examination. Individuals 
determined to be eligible for an examination shall receive written 
notification containing information concerning the date, time and 
location of the examination. This written notification shall be 
considered a receipt from the Commission to the applicant for 
the examination fee. Applicants found to be ineligible for an 
examination shall receive written notification of the ineligibility 
determination. 



(d) Any applicant who obtains certification by supplying false 
information to the Commission shall be subject to disciplinary 
action(s) as set forth in Section .0800 of this Subchapter. 

Authority G.S 90. 

.0502 INELIGIBLE APPLICANTS 

(a) Any applicant who is found to be ineligible for an 
examination shall be notified, in writing, of the ineligibility 
determination. Upon receiving notification of the ineligibility 



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229 



PROPOSED RULES 



determination, the applicant may submit additional information 
if they feel that the additional information will change their 
eligibility for the examination. Additional information submitted 
must be receiyed by the Commission at least 15 calendar days 
prior to the scheduled date of the examination. After the 
additional information is receiyed and reviewed, the applicant 
shall be notified, in writing, of the final decision as to their 
eligibility for the requested examination. 

(b) Upon receiving notification of ineligibility for an 
examination, an applicant may request a review of the 
ineligibility determination b\ the Commission. Such a request 
must be submitted to tlie Commission in writing. Once the 
request is received, the applicant shall be notified, by certified 
mail, of the date, time, and location of the Commission meeting 
at which the ineligibility determination will be reviewed. This 
notification shall be sent at least 1 5 days prior to the scheduled 
meeting of the Commission. The results of the review of the 
ineligibility determination by the Commission shall be submitted 
to the applicant in writing and this decision shall be considered 
final. 

Authority G.S. 90. 

.0503 EXAMINATION ADMINISTRATION 

(a) The Commission shall set the dates, times, and locations 
for all examinations. 

(b) Additional examinations may be administered by the 
Commission at any time, or at any location, when a sufficient 
number of applications have been received to warrant such an 
examination. 

(c) Each applicant approved for an examination must present 
a photographic form of positive identification, such as a North 
Carolina driver's license, to the proctor at the examination site 
prior to obtaining their examination. 

Authority G.S. 90. 

.0504 EXAMINATION GRADING 

(a) A passing score on any examination administered bv the 
Commission is achieved by earning a minimum of 70 percent of 
the available points on the examination. 

(b) Each applicant, and only the applicant, shall be notified. 
in writing, of their results on an examination. 

(c) If a passing score is attained by an applicant on an 
examination, the written notification to the applicant shall 
constitute the certification of the applicant as an operator of a 
water pollution control system of the same Upe and grade as the 
examination. 

.4ut liar it}- G.S. 90. 

.0505 EXAMINATION REVIEWS 

(a) Any applicant that fails to make a passing score on an 
examination ma\' request to review the examination. All requests 
to review an examination must be submitted to the Commission 
in writing within 15 da\'s of receiving notification of failing to 
make a passing score on an examination. Only those applicants 
who fail to make a passing score on an examination will be 



allowed to review their examination. 

(b) Applicants who submit a written request to review an 
examination shall be notified of a date, time, and location at 
which the applicant shall be given the opportunity to review their 
examination. This shall be the only opportunity the applicant 
will be allowed for reviewing their examination. 

(c) Under no circumstances shall an applicant be allowed to 
review their examination within 30 calendar days of an 
upcoming examination date. 

(d) The Commission shall not review individual examination 
questions for the purpose of changing examination scores. 
However, questions may be edited for future examinations. If a] 
error is found in an examination, the examination shall be 
regraded and adjustments made as necessary. 

Authorit\- G.S. 90. 



SECTION .0600 - CERTIFICATION WITHOUT 
EXAMINATION 

.0601 RECIPROCITY CERTIFICATION 

(a) The Commission may issue certification without 
examination to individuals listed on the National Association of 
Boards of Certification (ABC) Reciprocity Register who possess 
certification of the same type and grade as those certifications 
offered bv the Commission. 

(b) All requests for reciprocity certification must be submitted 
on an approved application form and must be accompanied by 
the required nonrefundable fee and proof of listing on the ABC 
Reciprocity Register. Upon receipt of a reciprocity certificate 
application, a copy of tlie rules which govern certified water 
pollution control system operators, along with a copy of a 
Commission-approved Statement of Understanding agreement, 
shall be forwarded to the applicant. The applicant must return 
the signed, notarized Statement of Understanding agreement 
verifying that thev have read and are familiar with the rules 
which govern certified water pollution control sn stem operators. 

(c) A reciprocity certificate shall be issued to the applicant 
upon receipt of the notarized Statement of Understanding by the 
Commission. Failure to complete and submit a notarized 
Statement of Understanding shall result in tlie request for 
reciprocity being denied. 

(d) Applicants for reciprocity certification shall not have 
taken and failed to achieve a passing score on a Commission- 
administered examination, of the same type and grade as that for 
which reciprocity certification is being requested, within the 
previous 24 month period prior to the date of the application for 
reciprocity certification. 

(e) Applicants who obtain reciprocity certification by 
providing false information to the Commission shall be subject 
to disciplinar\- action(s) as set forth in Section .0800 of this 
Subchapter. 

Authority- G.S. 90. 

.0602 TEMPORARY CERTIFICATES 

(a) Temporary certificates, of any type and grade, mav be 
issued by the Commission to the operator of a water pollution 



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PROPOSED RULES 



control system, for a period not to exceed one year, due to: 

(1) the unexpected vacancy of the ORC or the Back-up 
ORC; or 

(2) the suspension or revocation of the certification of the 
ORC or the Baci^-up ORC; or 

(3) a change in the classification of the system due to the 
completion of an upgrade or expansion, or permit 
modification; or 

(4) a modification to Commission rules. 

(b) Temporary Certificates shall only be issued for the ORC 
or the Back-up ORC of the system specified on the application. 

(c) All applications for a temporary certificate must: 

(1) be submitted by the owner of the system for the 
applicant; and 

(2) be accompanied by the required nonrefundable fee; 
and 

(3) include a letter fi'om the owner that contains: 

(A) an explanation for the need of a temporary 
certificate for the applicant; and 

(B) an explanation of all of the efforts that were 
made to employ an operator who possessed the 
required certification; and 

(C) a statement designating the applicant as either 
the ORC or Back-up ORC of the system; and 

(D) a plan that describes the actions that: 

(ij the applicant will pursue jn order to 
attempt to obtain permanent certification 
during the effective period of the 
temporary certificate; and 

(ii) the owner of the system will be pursuing 
in the event that the applicant fails to 
obtain permanent certification during 
the effective period of the temporary 
certificate. 

(d) Applicants for a temporary certificate must: 

(1) possess a currently valid certificate, or a currently 
valid OIT certificate, of the same type as the system 
and that is no more than one grade lower than the 
classification of the system when applying as an ORC 
and no more than two grades lower than the 
classification of the system when applying as a Back- 
u p ORC. with the exception of spray irrigation, land 
application of residuals, and subsurface systems; or 

(2) have a minimum of three months of actual experience 
in the operation of the type of system for which a 
temporary certificate is being applied if the temporary 
certificate js requested for a Grade I biological or 
nonbiological water pollution control system; and 

(3) be eligible for permanent certification prior to the 
expiration date of the temporary certificate; and 

(4) not have made three previous unsuccessful attempts to 
make a passing score on the same type and grade 
examination as the temporary certificate; and 

(5) have never relinquished, nor had revoked, any water 
pollution control operator certificate issued by the 
Commission. 

(e) Applicants who obtain a temporary certificate by 
providing false information to the Commission shall be subject 



to disciplinary action(s) as set forth in Section .0800 of this 
Subchapter. 

Authority G.S. 90. 

.0603 TEMPORARY CERTIFICATE RENEWAL 

(a) The Commission may allow the renewal of a temporary 
certificate: 

(1) if the applicant fails to pass the examination for 
permanent certification during the original effective 
period of the temporary certificate; or 

(2) the owner, desiring to give the applicant additional 
opportunities to obtain permanent certification, failed 
to employ a certified operator during the original 
effective period of the temporary certificate; or 

(3) there is a continuing insufficiency in the supp ly of 
certified operators of the type and grade needed 
within reasonable proximity to the system. 

£b} All applications for renewal of a temporary certificate 
must: 

(1) be submitted by the owner of the system 60 days prior 
to the expiration date of the original temporary 
certificate; and 
(2} be accompanied by the required nonrefundable fee; 

and 
(3) include a letter fi'om the owner that explains: 

(A) the need for renewal of the temporary 
certificate; and 

(B) the reasons for the failure of the applicant to 
obtain permanent certification during the 
original effective period of the temporary 
certificate; and 

(C) the efforts that have been made by the owner to 
employ a properly certified operator during the 
effective period of the original temporary 
certificate; and 

(D) the actions that will be taken by: 

(jj the applicant in order to obtain 
permanent certification during the 
effective period of the renewed 
temporary certificate; and 

(ii) the owner if the applicant does not 
obtain permanent certification during 
the effective period of the renewed 
temporary certificate. 

(c) The renewal request shall be denied if the applicant has 
failed: 

(1) to seek permanent certification by examination during 
the original effective period of the temporary 
certificate; or 

(2) to obtain permanent certification after three 
examination attempts during the original effective 
period of the temporary certificate. 

(d) A temporary certificate may only be renewed once for the 
same operator. 

(e) Applicants who obtain a temporary certificate renewal by 
providing false information to the Commission shall be subject 
to disciplinary action(s) as set forth in Section .0800 of this 



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PROPOSED RULES 



Subchapter. 

Authorities. 90. 

.0604 CONVERSION OF VOLUNTARY 

CERTIFICATION TO MANDATORY 
CERTIFICATION 

(a) Individuals who hold certificates of competency under a 
voluntary' certification program, administrated by any 
Commission-approved organization, may apply for the 
conversion of the voluntars' certificate into a certificate issued by 
the Commission once a mandatory certification program of the 
same type and grade as the voluntary program has been 
established by the Commission. 

(b) All applications submitted to the Commission requesting 
the conversion of a voluntary certificate to a mandators 
certificate must be accompanied by the appropriate 
nonrefundable fee and a copy of the voluntaPi' certificate. 

.Authority G.S. 90. 

SECTION .0700 - RENEWAL OF CERTIFICATION 

.0701 REQUIREMENTS 

(a) In order to maintain a currently valid certificate, the 
certificate must be renewed annually by: 

(1) submitting payment of the appropriate required annual 
renewal fee, as set forth in G.S. 90A-42. by the end of 
the effective yean and 

£2} beginning December 31. 2000. and each successive 
year, by providing documentation of the completion 
of a minimum of 18 contact hours of additional 
training approved by the Commission during each 
three year period following the year of initial 
certification. 

(b) Certificates that are not renewed for two consecutive \ ears 
shall be considered invalid. In order to renew an invalid 
certificate, the operator shall be required to take, and make a 
passing score on. an examination of the same t\pe and grade as 
the former certificate. In order to qualifs to sit for the 
examination, all outstanding renewal fees and penalties that have 
accrued since the certificate was last renewed must be paid and 
all required continuing education documented. 

(c) Renewal notices shall be mailed to each certified operator. 
at the last known address for the operator on file with the 



Commission. 60 calendar davs prior to the renewal due date. 
Failure to receive a renevsal notice does not relieve a certified 
operator of the responsibility to renevs their certificate by the 
renewal due date. 

.Author It}- G.S. 90. 

SECTION .0800 - DISCIPLINARY ACTIONS 

.0801 GROUNDS FOR DISCIPLINARY ACTIONS 

The Commission ma\ take disciplinary actions, in accordance 

with Rule .0802 of this Section, against a certified operator for: 

( 1) practicing fraud or deception in the performance of 



their duties; or 

(2) failure to properly use reasonable care or judgment in 
the performance of their duties: or 

(3) failure to apply their knowledge or ability in the 
performance of their duties: or 

(4) incompetence or the inability to properly perform their 
duties: or 

(5) intentionally supplying false information in order to 
obtain, or maintain, certification: or 

(6) cheating on a certification examination. 

Authority G.S. 90. 

.0802 DISCIPLINARY ACTIONS 

(a) The Commission may revoke, or suspend, the certification 
of an operator in accordance with the provisions of G.S. 90A-4 1 . 
The Chairman of the Water Pollution Control System Operators 
Certification Commission, is delegated the authority to propose 
a revocation or suspension. 

(b) When disciplinary actions are needed against an operator. 
an enforcement committee, which shall consist of. but not be 
limited to: 

(1) the Chairman of the Water Pollution Control System 
Operators Certification Commission: and 

(2) two persons appointed bv the Director of the Division 
of Water Quality: and 

(3) representatives of the agency that has compiled the 
information on the operator: and 

(4) the Vice Chairman of the Commission: and 

(5) the member of the Commission who represents the 
type of system at which the operator is employed: 

shall be convened to review the information that is submitted on 
the operator. The members of the committee will offer guidance 
to the Commission Chairman in regards to the proper actions 
that should be taken against the operator. 

(c) Notice from the Commission Chairman of the proposed 
revocation, or suspension, of certification shall be delivered to 
the affected operator and the ovsTier of the svstem(s) at which the 
operator is employed by certified mail, at the last known address 
for the operator on file with the Commission, at least 20 calendar 
davs prior to the effective date of the proposed revocation or 
suspension. This notice shall contain the alleged facts or 
conduct upon which the revocation, or suspension, is based and 
shall inform the operator of their right to contest the action. If 
the action is not contested, the revocation, or suspension, 
becomes a final agency action. If the action is contested, the 
procedures to be followed are specified in G.S. 150B of the 
Administrative Procedures Act. 

(d) The Commission Chairman may issue a written reprimand 
to an operator in accordance with G.S. 90A-41 . The reprimand 
shall be delivered to the operator by certified mail at the last 
known address for the operator on file with the Commission. A 
copy of the reprimand shall be kept in the file maintained b\ the 
Commission on each certified operator and a copy shall be sent 
to the present employer of the operator. An operator who 
receives a reprimand shall be given the opportunity' to put a letter 
of rebuttal into their Commission file and may contest the 
actions taken by the Commission in accordance with the 



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procedures specified in G.S. 150B of the Administrative 
Procedures Act. 

(e) If an applicant is caught cheating on an examination by a 
proctor of the examination, the applicant shall be excused from 
the examination, the examination shall not be graded, the fee for 
the examination shall be forfeited by the applicant, and any other 
certification(s) held by the applicant with the Commission will 
be subject to revocation as set forth in G.S. 90A-41. 

tf) If the Commission determines that an applican t cheated on 
an examination after the examination has been graded and 
certification has been conveyed to the applicant, the certification 
obtained through the examination shall be revoked and any other 
certification(s) held by the applicant with the Commission will 
be subject to revocation as set forth in G.S. 90A-41. 

Authority G.S. 90. 



Subchapter. The individual must begin the certification process 
at the lowest grade level offered for the type of certification 
sought. Operational experience accrued by the individual prior 
to the revocation of any previously held certification(s) shall not 
be considered when determining the eligibility of the individual 
for the examination. 

(e) If the Commission denies eligibility for certification to an 
individual whose previous certification was revoked, the 
individual may appeal the decision in accordance with the 
procedures contained in G.S. 150B of the Administrative 
Procedures Act. 

(f) Applicants for certification who were previously 
determined to be ineligible for certification due to intentionally 
supplying false information to the Commission must follow the 
procedures set forth in Paragraphs (a) through (e) of this Rule in 
order to obtain certification. 



.0803 CERTIFICATION FOLLOWING 
DISCIPLINARY ACTIONS 

(a) An individual who has had certification revoked by the 
Commission shall petition the Commission for any new 
certification sought and may not petition the Commission for 
such new certification sooner than 730 calendar days after the 
effective date of the revocation. Following the denial of 
eligibility for re-certification after relinquishment or revocation. 
an operator must wait 365 calendar days before reapplying for 
certification. The following information must be included in the 
petition for certification: 

(1) a written statement explaining the actions that the 
individual has taken to correct those problems that 
lead to the revocation of the certification previously 
held with the Commission; and 

(2) a statement that attests to the Commission that, upon 
obtaining certification, the individual will comply 
with all rules and regulations governing the proper 
operation of water pollution control systems. 

(b) After submittal of the petition for certification, the 
petitioner may be required to appear before the Commission at 
a regularly scheduled meeting. The petitioner shall be notified. 
by certified mail, of the date, time and location of the meeting at 
least 1 5 days prior to the meeting. 

(c) Within 120 days following receipt of a petition for 
certification, the Commission shall notif\' the individual, in 
writing, of its decision to deny or grant examination eligibility in 
accordance with the procedures set forth in Section .0500 of this 
Subchapter. Eligibility for certification shall only be granted if 
there is substantial evidence that those conditions that lead to the 
revocation of previous certification held by the petitioner have 
been corrected. 

(d) Certification of an individual whose previous certification 
has been revoked shall only occur by the individual sitting for, 
and obtaining a passing score on. an examination. The 
examination requirement shall not be waived. Once approval is 
granted by the Commission for certification after reviewing the 
petition for certification, the individual must submit an 
application, accompanied by the appropriate examination fee, 
and meet the examination eligibility requirements for the type of 
certification being sought as set forth m Section .0400 of this 



Authority G.S. 90. 

.0804 CONTESTED CASE PROCEDURES 

(a) Administrative hearings shall be held in accordance with 
G.S. 1 506 and the administrative hearing procedures codified at 
15A NCAC IB .0200 et seq.. are hereby incorporated by 
reference including any subsequent amendments and additions. 

{b} Copies of 15A NCAC IB .0200 may be inspected at the 
offices of the Division of Planning and Assessment. 512 North 
Salisbury' Street. 8th Floor. Archdale Building. Raleigh. North 
Carolina 2761 1. Copies may be obtained at the noted location 
or fi'om the Rules Division of the N.C. Office of Administrative 
Hearings at a cost determined by those offices. 

Author it}' G.S. 90. 

SECTION .0900 - CONTRACT OPERATION OF 
WATER POLLUTION CONTROL SYSTEMS 

.0901 RESPONSIBILITIES OF CONTRACT 
OPERATORS AND CONTRACT 
OPERATIONS FIRMS 

Each contract operator, or contract operations firm, that enters 
into a contract with the owner of a water pollution control 
system to operate the system must notify the owner, in writing, 
within five calendar days of 

(1) any change m the designation of the ORC or the 
Back-up ORC of the system; or 

(2) becoming aware of any situation or problem 
(preexisting, anticipated, or otherwise) which may 
interfere with the proper operation of the system and 
necessitate corrective action by the owner. This 
notice shall include the comments and 
recommendations of the operator in regards to actions 
or measures that should be taken to correct the noted 
situation or problem. 

Authority G.S 90. 

.0902 ANNUAL REPORT 

On or before April 1 of each year, each contract operator, or 



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contract operations Firm, must submit an annual report to the 
Commission that includes: 

(1 ) the name, street address, mailing address, and 
business telephone number of the contract operator, or 
contract operations firm: and 

(2) the name, address, contact name, and telephone 
number of a]] water pollution control s\'stems 
operated by the contract operator, or contract 
operations firm; and 

(3) the name, social security number, certificate t\pe(s) 
and grade(s). and certification number(s) of all 
certified operators emplo\ed b\ the firm: and 

(4) the ORC or Back-up ORC designations for each 
operator employed by the firm and the name and 
permit number of each system for which each operator 
is the ORC or the Back-up ORC: and 

(5) the name, street address, mailing address, and 

laboraton.'(s) 

or contract 



(6) 



telephone number of the certified 

utilized by the contract operator. 

operations firm: and 

other information as requested by the Commission. 



Authority G.S. 90. 

SECTION .1000 - RULE MAKING PROCEDURES 
AND PETITIONS FOR REGULATORY ACTIVITY 

.1001 RULE MAKING PROCEDURES 

The Commission incorporates by reference 15A NCAC 8B 
.0 1 00 for the purpose of its rule-making procedures. 

Authority- G.S. 90. 

.1002 PETITIONS FOR REGULATORY ACTIVITY 

(a) An\ person(s) desiring to request the adoption, 
amendment, or repeal of a rule ma\ make such request in a 
petition filed pursuant to G.S 1 50B-20. addressed to the Water 
Pollution Control System Operators Certification Commission 
and mailed to the Chairman at PO Box 29535. Raleigh. NC 
27626-0535. Such petitions shall contain: 

(1 ) a draft of the proposed rule or a summan of its intent: 
and 

(2) reasons for adoption of the proposed rule(s) and the 
effect it will ha\e on existing rules and practices: and 

(3) the name(s) and address(es) of the petitioner(s). 

(b) Petitions shall be placed on the agenda of the next 
regularK scheduled meeting of the Commission if received at 
least four weeks prior to the meeting. The Chairman shall 
prepare recommended responses to petitions for the 
Commission's consideration. Petitions shall be considered in 
accordance with the requirements of G.S. 150B-20. 

Authority G.S. 90. 

SECTION .1 100 - ADMINISTRATIVE DUTIES 

.1101 REFUNDING OF FEES 

When refunding of fees becomes necessarw it will be the 



responsibility of the Commission to determine the fees, or 
portion of fees, to be refunded in accordance with G.S. 90A-42. 

Authority G.S. 90. 

.1102 DELEGATION OF AUTHORITY 

The Commission may delegate its decision-making authority 
to its designee, where allowed, in order to implement the 
sections of these Rules requiring such authority'. 

.Authority- G.S 90. 



W X W X X w 



Notice is hereby given in accordance with G.S. 150B-21.2 
that the Commission of Health Services intends to amend 
rules cited as ISA SCAC I6A .0101. .0106 and repeal 16A 
.0108. \otice of Rule-making Proceedings was published in the 
Register on May- 15. 1998. 

Proposed Effective Date: April 1. 1999 

A Public Hearing will be conducted at 1:00 p.m. on August 5. 
1998 at the Ground Floor Hearing Room, Archdale Building, 
512 N. Salisbury Street. Raleigh. \C. 

Reason for Proposed Action: The Migrant Health Program 
currently requires private medical and dental providers, 
pharmacies, and hospitals who provide health sen-ices to 
migrant farmworkers to submit an Authorization Request form 
in addition to the standard claim form. Requirement of the 
Authorization Request form places an excessive administrative 
burden on providers and has had a negative impact on the 
Program's capacity- to recruit additional providers to participate 
in the Program. Because virtually all Authorization Requests in 
the Migrant Health Program are submitted to the program with 
the claim after the service has been rendered, completing and 
processing the Authorization from lias been felt to be a wasteful 
and unnecessary duplication of effort for both private providers 
and the state claims processors. The current dual authorization 
and claims processing procedures will be simplified to a single 
process of revie\\-ing claim requests for services provided to 
eligible individuals. 

Comment Procedures: Comments may- be submitted in writing 
within 30 days after the date of publication of this issue of the 
North Carolina Register to Suzana Young, Division of 
Community Health. Office of Minority: Health, DHHS, PO Box 
29605. Raleigh. \C 2-626-0605. 

Fiscal Note: These Rules do not affect the expenditures or 
re\-enues of state or local government funds. These Rules do not 
ha\e a substantial economic impact of at least five million 
dollars (S5. 000.000 1 in a 12-month period. 

CHAPTER 16 - ADULT HEALTH 

SUBCHAPTER 16A - CHRONIC DISEASE 



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PROPOSED RULES 



SECTION .0100 - MIGRANT HEALTH 



Raleigh, NC 2761 1. 



.0101 GENERAL 

The Migrant Health program is administered by the H e alth 
Car e S e ction, Division of Adult H e alth, D e partment of 
Environment. H e alth, and Natural R e source s , P.O. Box 276 8 7, 
Raleigh, NC 27611 76 8 7. Division of Community Health in the 
Department of Health and Human Services. 

Authority G.S. I30A-223; Sec. 329, Public Health Services Act, 
95 Stat. 569 (42 U.S.C. 254b). 

.0106 ELIGIBLE MIGRANTS 

All migrants are eligible for participation in the fee-for-service 
reimbursement aspect of the program. Migrant status shall be 
determined by the provider of medical care services and certified 
by a C e rtification of Migrant Status form Migrant (Farmworker) 
Health Program Eligibility Application form (DHHS 3753) 
signed by the patient, a person responsible for the patient, or the 
provider. Certification forms ar e available fi'om the Offic e of 
Purcha s e of M e dical Car e S e rvic e s. NC D e partment of 
Environment, H e alth, and Natural R e sourc e s, P.O. Box 276 8 7, 
Ral e igh, NC 7611 76 8 7. There are no financial eligibility 
requirements. 

Authority G.S I30A-223. 

.0108 AUTHORIZATION 

(a) A servic e must b e authoriz e d b e for e th e Migrant H e alth 
program will provid e r e imburs e m e nt. R e qu es t s for authorization 
must b e submitt e d on an Authorization R e qu es t Form, DEHNR 
3056, and includ e a sign e d C e rtification of Migrant Status form. 
Forms may b e obtain e d from th e Offic e of Purchas e of M e dical 
Car e S e rvices, NC D e partm e nt of Environm e nt, H e alth, and 
Natural R e sourc e s, P.O. Box 276 8 7, Ral e igh, NC 2761 1 76 8 7. 
Tim e frames and procedures for authorization and claims 
proc e ssing ar e found in 15A NCAC 2 4 A. R e imbursem e nt rat e s 
ar e found in rul e s in 15A NCAC 24 A. 

(b) Only thos e se rvic e s li s t e d in Paragraph (a) of Rule .0109 
of this S e ction s hall b e authoriz e d for reimbur s ement. 



Authority G.S I30A-223. 



Reason for Proposed Action: On August 29. 1997 the General 
Assembly adopted "An Act to Enhance and Improve Child Care 
in North Carolina" which was signed into law and became 
effective on September 16, 1997. The existing North Carolina 
Administrative Code is in conflict with the new General Statutes. 
For instance, the new Statutes allows the use of domestic kitchen 
equipment in child care centers regardless of facility size or 
number of meals served. The existing Administrative Code (15 A 
NCAC 18A .2810) requires child care centers licensed for or 
serving meals to 30 or more children to use commercial kitchen 
equipment. The new General Statutes also requires child care 
centers that fry foods to use commercial hood ventilation 
systems. The existing Administrative Code does not have a 
commercial hood ventilation requirement. Other proposed 
changes to the Administrative Code in ISA NCAC 18A .2801 - 
.2804, .2810, .2812 - .2813, .2815, .281 7, .2819 - .2820, .2822 - 
.2825. .2827 - .2834, are in response to comments received from 
local health departments officials and child care center 
operators to clarify existing administrative rules. 

Comment Procedures: Comments, both written and oral, on 
the proposed changes to the Administrative Rules are welcome 
from all interested parties. Agency staff will review all 
comments in time to incorporate, if necessary, changes to the 
proposed rule package. Written comments should be mailed to 
Ed Norman. DENR-Div. of Env. Health, PO Box 29534, 
Raleigh, NC 27626-0534. Comments will be accepted through 
August 14, 1998. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period. 

CHAPTER 18 - ENVIRONMENTAL HEALTH 

SUBCHAPTER ISA -SANITATION 

SECTION .2800 - SANITATION OF CHILD 
DAY CARE FACILITIES 



******************** 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the Department of DEN R - Commission for Health 
Services intends to amend rules cited as 15A NCAC 18A .2801 - 
.2804, .2808, .2810, .2812 - .2813, .2815, .2817, .2819 - .2820, 
.2822 - .2825, .2827 - .2834. Notice of Rule-making 
Proceedings was published in the Register on February 16, 
1998 and April 1, 1998. 

Proposed Effective Date: April 1, 1999 

A Public Hezrmg will be conducted at 2:30 p.m. on August 5, 
1998 at the Archdale Building, Ground floor Hearing Room, 



.2801 DEFINITIONS 

The following definitions shall apply throughout this Section: 

( 1 ) "Adequate" means determined by the Department to 
be of sufficient size, volume, or technical 
specifications, to effectively accommodate and 
support the planned, current, or projected workloads 
for a specified operational area. 

(2) "Approved" means procedures and domestic or 
commercial equipment determined by the Department 
to be in compliance with this Section. Food service 
equipment and utensils which meet and are installed 
in accordance with National Sanitation Foundation 
(NSF) standards or e qual shall be consid e r e d as 
approved. Th e NSF s tandard s arc h e reby incorporat e d 



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PROPOSED RULES 



by r e f e r e nce including any subs e qu e nt am e ndm e ntG 
and e ditions. This mat e rial is availabl e for in s p e ction 
at th e D e partm e nt of Environm e nt. H e alth, and 
Natural R e sources. Division of Environm e ntal H e alth. 
1330 St. Mary's Str ee t. Ral e igh. North Carolina. 
Copi es may bo obtained from th e National Sanitation 
Foundation. P.O. Box 1301 1. Ann Arbor. Michigan. 
48 1 13 01 4 at a cost of thr ee hundred tw e nty fiv e 
dollars (S325.00). 

(3) "Communicable Condition" means the state of being 
infected with a communicable agent but without 
symptoms. 

(4) "Communicable Disease" means any disease that can 
be transmitted fi"om one person to another directly, by 
contact with excrement, other body fluids, or 
discharges from the body; or indirectly, via substances 
or inanimate objects, such as contaminated drinking 
glasses, toys or water; or via vectors, such as flies, 
mosquitoes, ticks, or other insects. 

(5) "Department" or "DENR" "DEHNR" means the Nt€t 
North Carolina Department of Environm e nt. H e alth, 
Environment and Natural Resources. The term also 
means the authorized representative of the 
Department. 

(6) "Division of Child Development" means the Division 
of Child Development of the N.C. Department of 
Health and Human R es ourc es . Services. 

(7) "Eating and Cooking Utensils" means and includes 
any kitchenware, tableware, glassware, cutlery, 
utensils, containers, or other equipment with which 
food or drink comes in contact during storage, 
preparation, or serving. 

(8) "Environmental Health Specialist" means a person 
authorized to represent the Department. 

(9) "Food" means any raw. cooked, or processed edible 
substance, ice, beverage, or ingredient used or 
intended for use or for sale in whole or in part for 
human consumption. 

(10) "Frying" means to cook over direct heat in hot oil or 
far 

(-W) (11) "Hermetically Sealed" means a container 
designed and intended to be secure against the entry 
of microorganisms and to maintain the commercial 
sterility of its contents after processing. 

(444 (12) "Hygroscopic Food" means food which readily 
takes up and retains moisture, such as bean sprouts. 

(43) ( 13) "Impervious" means that which will not allow 
entrance or passage, such as an airtight plastic 
container that will not allow the entrance of moisture 
or vermin. 

(4^ ( 14) "Potable Water" means water from an approved 
source which is suitable for drinking. 

(44) ( 15) "PotentialK Hazardous Food" means any food or 
ingredient, natural or synthetic, in a form capable of 
supporting the growth of infectious or toxigenic 
microorganisms, including Clostridium botulinum. 
This term includes raw or heat treated food of animal 
origin, raw seed sprouts, and treated foods of plant 



origin. The term does not include foods which have 
a pH level of 4.6 or below or a water activity (Aw) 
value of 0.85 or less. 

(4^ (16) "Putrescible Materials" means materials likely to 
rot or putrefy, such as fruit, vegetables, meats, dairy 
products, or similar items. 

ft4) (17) "Sanitary Sewage System" means a complete 
system of sewage collection, treatment, and disposal 
and includes septic tank systems, connection to a 
public or community sewage system, sewage reuse or 
recycle systems, mechanical or biological treatment 
systems, or other such systems. 

(4^ (18) "Sanitize" means the approved bactericidal 
treatment by a process which meets the temperature 
and chemical concentration levels in 1 5 A NCAC 1 8A 
t364^ .2812. 

(48) (19) "Sewage" means the liquid and solid human 
body waste and liquid waste generated by water-using 
fixtures and appliances, including those associated 
with foodhandling. The term does not include 
industrial process wastewater or sewage that is 
combined with industrial process wastewater. 

(4^ (20) "Single-Service Articles" means tableware, 
including flatware and hollowware, carry-out utensils 
and other items such as bags, containers, stirrers, 
straws, toothpicks, and wrappers which are designed, 
fabricated and intended b\ the manufacturer for 
one-time use. 

(50) (21) "Single-Use Articles" means bulk food 
containers and utensils intended by manufacturer to 
be used once and discarded. The term includes items 
such as formed buckets, bread wrappers, pickle 
barrels, and No. 10 cans. The term does not include 
"singl e s e rvic e articl e s" single-service articles as 
defined in this Section. 

Author in' G.S. 110-91. 



.2802 APPROVAL OF CONSTRUCTION AND 
RENOVATION PLANS 

(a) Plans drawn to scale and specifications for new child care 
centers construction or modifications to anv e xisting or propos e d 
day care facility shall be submitted to the local health department 
for review and approval prior to initiating b e ginning 
construction. Plans drawn to scale and specifications for 
changes to building dimensions, kitchen specifications, or other 
modifications to existing child care centers shall also be 
submitted to the local health department for review and approval 
prior to construction. Plans drawTi to scale and specifications for 
prototype "franchise" or "chain" child care centers faciliti e s may 
atee shall be submitted by th e local h e alth d e partm e nt to th e 
Environm e ntal H e alth Servic e s S e ction, to DENR. Division of 
Environmental Health. Environmental Health Services Section, 
D e partm e nt of Environm e nt. Health, and Natural R e sourc es . PO 
Box 57687, 29534. Raleigh. North Carolina 27611 76 8 7. 27626- 
0534. The initial inspection for new construction or the first 
inspection following modifications to existing child care centers 
faciliti es shall not be made bv the Environmental Health 



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PROPOSED RULES 



Specialist unless these plans have been approved. 

(b) Review of the plans by the local health department or the 
Environmental Health Services Section shall be based on the 
requirements of this Section. 

(c) Construction and modifications shall comply with the 
approved plans. 

Authority G.S. 110-91. 

.2803 INSPECTIONS AND REPORTS 

(a) Unannounced inspections of child day care centers 
faciliti es shall be made by an Environmental Health Specialist at 
least once each six months. An original and two copies of the 
Sanitation Standards Evaluation Form for ©ay Child Care 
Centers Faciliti es shall be completed by the Environmental 
Health Specialist. The original shall be submitted to the 
Division of Child Development by the Environmental Health 
Specialist. The child care center facility operator and the 
Environmental Health Specialist shall each retain a copy. 

(b) If the Environmental Health Specialist determines that 
conditions found at the child care center facility' at the time of 
any inspection are dangerous to the health of the children, the 
Environmental Health Specialist shall notify the Division of 
Child Development within 24 hours by verbal contact. The 
original of the inspection report documenting the dangerous 
conditions shall be sent to the Division of Child Development 
within two working days following the inspection. 

(c) An Environmental Health Specialist may conduct an 
inspection of any child day care center facility as frequently as 
necessary in order to ensure compliance with applicable 
sanitation standards. 

Authority G.S. 110-91. 

.2804 FOOD SUPPLIES 

(a) Food shall be in good condition, free from spoilage, filth, 
or other contamination and shall be safe for human consumption. 
Potentially hazardous foods Food shall be obtained from sources 
that are regulated by and comply with all laws relating to food 
and food labeling. The use of food packaged in hermetically 
sealed containers that was not prepared in a commercial food 
processing establishment is prohibited. 

(b) Milk products that are used shall be Grade "A" 
pasteurized fluid milk and fluid milk products or evaporated 
milk. The term "milk products" means those products as defined 
in 15A NCAC 18A .1200. Copies of 15A NCAC ISA .1200 
may be obtained from the Environmental Heahh Services 
Section, Division of Environmental Health, D e partm e nt of 
Environm e nt, H e alth, and Natural R es ourc es . DENR, PO Box 
27687, Raleigh, North Carolina 2761 1-7687. Unless prescribed 
by a physician, dry milk and dry milk products may be used only 
for cooking purposes, including cooked pudding desserts and 
flavored hot beverages. 

(c) Fresh and frozen shucked shellfish (oysters, clams, or 
mussels) shall be packed in nonretumable packages identified 
with the name and address of the original shell stock processor, 
shucker - packer, or repacker. and the interstate certification 
number issued according to law. Shell stock and shucked 



shellfish shall be kept in the container in which they were 
received until they are used. Each container of unshucked shell 
stock (oysters, clams, or mussels) shall be identified by an 
attached tag that states the name and address of the original shell 
stock processor, the kind and quantity of shell stock, and an 
interstate certification number issued by the State or foreign 
shellfish control agency. After each container of shellstock has 
been emptied, the management shall remove the stub of the tag 
and retain it for a period of at least 90 days. 

(d) Raw eggs or products containing raw eggs shall not be 
consumed, including raw cookie dough, cake batter, brownie 
mix, milkshakes, ice cream and other food products. A 
pasteurized egg product may be used as a substitute for raw 
eggs. 

(e) Formula, mother's milk, and other bottled beverages sent 
from home shall be fully prepared, dated, and identified for the 
appropriate child at the child's home. All formula, mother's 
milk, and other bottled beverages shall be returned to the child's 
home or discarded at the end of each day. Formula provided by 
the child day care center facility shall be commercially 
pre-packaged, ready-to-feed, fully prepared, and packaged in 
single- service containers. However, formula that does not meet 
these requirements may be provided by the child day care center 
facility as prescribed by the child's physician or instructed by 
parent or guardian in writing. Bottles and other drinking utensils 
provided by the child day care center facility shall be sanitized 
in accordance with this Section. Formula and other beverages 
which require refrigeration, baby food after opening, and 
mother's milk shall be identified for the appropriate child and 
shall be refrigerated at 45 °F (7°C) or below. Commercially 
prepared baby foods shall be served from a serving dish rather 
than the food jar. Upon opening jars of baby food shall be 
covered, dated with the date of opening, refrigerated, and used 
within 48 hours. However, baby food may be served directly 
from the jar to one child if unused portions of the food are 
discarded after each feeding. 

(f) Faciliti e s Child care centers receiving prepared, 
ready-to-eat meals from outside sources shall use only catered 
meals obtained from a food handling establishment permitted or 
inspected by a health department. During transportation, food 
shall meet the requirements of these Rules relating to food 
protection and storage. 

(g) All bag lunches containing potentially hazardous foods 
shall be refrigerated in accordance with this Section. 

Authority G.S. 110-91. 

.2808 FOOD SERVICE 

(a) Milk and milk products for drinking purposes may shall 
be served from a commercially filled container of not more than 
one gallon capacity or drawn from a commercially filled 
container stored in a mechanically refrigerated bulk milk 
di s p e n se r, dispenser directly into the drinking utensil. 

(b) Ice. if purchased, shall be purchased from an approved 
source and kept clean. Ice shall be made, handled, transported, 
stored and dispensed in such a manner as to be protected against 
contamination. Ice shall be dispensed with scoops, tongs, or 
other ice-dispensing utensils or through automatic ice-dispensing 



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237 



PROPOSED RULES 



equipment. Ice-dispensing utensils shall be stored on a clean 
surface or in the ice with the dispensing utensil's handle 
extended out of the ice. Between uses, ice transfer receptacles 
shall be stored to protect them from dust, drip, splash and other 
contamination. Ice storage bins shall be drained through an air 

gap- 

(c) Employees preparing food shall have used antibacterial 
soap, dips, or hand sanitizers immediately prior to food 
preparation or shall use clean, disposable gloves or sanitized 
utensils during food preparation. This requirement is in addition 
to all handwashing requirements in Rule .2828 of this Section. 

(d) Once served, portions of leftover food shall not be served 
again unless the package is intact and the food is not potentially 
hazardous. 

(e) Between uses during service, dispensing utensils shall be 
stored in the food with the dispensing utensil handle extended 
out of the food or stored clean and dry. 

(f) Children attending child care centers shall not have access 
to the kitchen except for in emergencies or when participating in 
a supervised educational activity. 

£gj Nothing in these Rules shall be construed as prohibiting 
family style food service at child care centers so long as 
supervision of the children is maintained throughout each meal 
except that a family style food service may be prohibited during 
the outbreak and investigation of communicable diseases. 

Authority G.S. 110-91. 

.2810 SPECIFICATIONS FOR KITCHENS 

(a) Day Car e Faciliti e s Lic e ns e d For child care centers 
licensed for or serving food to 6 to 29 Childr e n: fewer than 30 
children: 

( 1 ) Domestic kitchen equipment may be used. Domestic 
kitchen equipment shall include at least a 
two-compartment sink, refi^igeration equipment and 
adequate cooking equipment. Child Bay care centers 
faciliti e s using multi-use articles ut e nsil s shall also 
provide a dishwasher. In lieu of a dishwasher and 
two-compartment sink, a three-compartment sink with 
drainboards or adequate counter top space may be 
us e d, used; 

(2) A separate lavatory for handwashing is required in 
food preparation areas. If the dishwashing area is 
separate from the food preparation area, an additional 
lavatory shall be required in the dishwashing area. 
These handwashing lavatories shall be used only by 
food service p e r s onn e l, personnel; and 

(3) A commercial hood shall be installed when foods are 
fried on-site. The hood shall be installed m 
accordance with the North Carolina Building Code 
and approved by the local building code enforcement 
agent. 

(b) Day Car e Faciliti e s Lic e ns e d For child care centers 
licensed for or serving food to 30 or Mor e Childr e n: more 
children: 

(1) Only approved Approved food service equipment 
shall be used. If e quipm e nt i s not National Sanitation 
Foundation list e d, th e own e r or op e rator s hall s ubmit 



documentation to th e D e partm e nt that d e monstrat e s 
that the e quipment is at lea s t e quival e nt to National 
Sanitation Foundation standards. — Th e D e partm e nt 
shall d e termin e if the equipment is at l e ast e quival e nt 
to National Sanitation Foundation Standards; When 
domestic kitchen equipment is used the following 
provisions shall apply: 

(A) Potentially hazardous foods shall not be 
prepared prior to the day that such foods are to 
be served; 

(B) Potentially hazardous foods that have been 
heated shall not be reheated or placed in 
refrigeration to be used in whole or in part on 
another day; 

(C) Salads containing potentially hazardous food 
shall not be prepared on-site; and 

(D) All meats, poultry, and fish shall be purchased 
in pre-portioned, ready-to-cook form. 

(2) Food service equipment shall include: 

(A) Where meals are prepared and multi-use 
articles are used, at least a three-compartment 
sink with drainboards or adequate countertop 
space, refrigeration equipment, and cooking 
equipment; 

(B) Where meals are prepared and only single- 
service articles are used, at least a two- 
compartment sink with drainboards or adequate 
counter top space, refrigeration equipment, and 
cooking equipment; or 

(B) (Cj Where no meals are prepared and only 
single-service articles are used, refrigeration 
equipm e nt equipment, and at least a domestic 
two-compartment sink with drainboards or 
adequate countertop space, shall b e requir e d. 

(3) A separate food preparation sink with drainboard shall 
be provided for the washing and processing of foods 
except where plan review shows that volume and 
preparation frequency do not require separate 
facilities. 

(4) A separate lavatory for handwashing is required in 
food preparation and food service areas. If the 
dishwashing area is separate from the food 
preparation area, an additional lavatory shall be 
required in the dishwashing area. These handwashing 
lavatories shall be used only by food service 
personnel. 

(5) A commercial hood shall be installed when foods are 
fried on-site. The hood shall be installed in 
accordance with the North Carolina Building Code 
and approved by the local building code enforcement 
agent. 

(c) If baby food is prepared in the infant or toddler area, an 
infant/toddler food service area shall be provided. The 
infant/toddler food service area shall be used exclusively for the 
storage of infant bottles, warming of bottles, storage of fully 
prepared baby foods in their containers and the mixing of dry 
cereals with formula or with potable water from a source other 
than a lavatory used for handwashing. The food preparation 



238 



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13:2 



PROPOSED RULES 



counters, bottle warming equipment, food and food contact 
surfaces shall not be within reach of children. The infant/toddler 
food service area shall contain at least an adequate refi-igerator, 
bottle warming equipment, an easily cleanable counter top and 
a separate lavatory for food service handwashing only. 
Domestic food service equipment may be used in infant/toddler 
food service areas regardless of child day care center facility 
size. 

(1) All equipment shall be cleaned at least daily. 
Warming equipment shall be cleaned and sanitized as 
required in Rule .2812 or .2813 of this Section. 

(2) After each use, all multi-use eating and drinking 
articles ut e nsils shall be cleaned and sanitized in the 
child day care center facility kitchen. 

(3) Single-service articles it e ms shall be handled as 
required in Rule .2814 of this Section. 

(4) Counter, shelf or cabinet space shall be provided for 
food storage. All dry cereal shall be stored in closed, 
labeled containers. Food supplies shall be stored in 
accordance with this Section. 

(d) Equipment that was installed in a day child care center 
facility prior to July 1, 1991 that does not meet all the design and 
fabrication requirements of this Section shall be deemed 
acceptable if it is in good repair, capable of being maintained in 
accordance with the rules of this Section and the food-contact 
surfaces are nontoxic. This shall not apply to e quipm e nt 
requir e d in Paragraph (c) of this Rul e . This shall not apply to 
equipment in Paragraph (c) of this Rule or to commercial hoods 
that are required for frying foods. Replacement equipment and 
new equipment acquired after July I, 1991 shall meet the 
requirements of Paragraphs (a), (b) and (c) of this Rule. 
Licensed child care centers faciliti e s that increase the number 
licensed for or that increase the number of children to whom 
they serve food, shall comply with all the rules of this Section. 
Upon change of ownership, or the closing of the operation and 
the issuance of a new license, the child day care center facility 
shall comply with all the rules of this Section. 

Authority G.S. 110-91. 

.2812 MANUAL CLEANING AND SANITIZING 

(a) Day car e faciliti e s Child care centers licensed for or 
serving food to 30 or more children, shall provide and use a 
three-compartment sink with drainboards or adequate counter 
top space if utensils and equipment are manually cleaned and 
sanitized. 

(b) Bay Child care centers faciliti e s licensed for or serving 
food to 6 to 29 fewer than 30 children may use a domestic 
dishwasher for washing and rinsing of multi-use articles utensils 
and equipment. Utensils and equipment shall then be sanitized 
in the sink as required in Subparagraph (e)(4) of this Rule. Sink 
compartments shall be large enough to fiilly submerge the largest 
items to be washed and each compartment shall be supplied with 
hot and cold running water. 

(c) Drainboards or countertop space of adequate size but in 
no case less than 24" long shall be provided for proper handling 
of soiled utensils prior to washing and cleaned utensils following 
sanitizing. 



(d) Equipment and utensils shall be preflushed or prescraped 
and, when necessary, presoaked to remove gross food particles 
and soil. 

(e) Except for fixed equipment and utensils too large to be 
cleaned in sink compartments, manual washing, rinsing, and 
sanitizing shall be conducted in the following sequence: 

( 1 ) Sinks shall be cleaned prior to use. 

(2) Equipment and utensils shall be thoroughly washed in 
the first compartment with a hot detergent solution 
that is kept clean. 

(3) Equipment and utensils shall be rinsed free of 
detergent and abrasives with clean water in the second 
compartment. 

(4) The food-contact surfaces of equipment and utensils 
shall be sanitized in the third compartment by: 

(A) Immersion for at least one minute in clean, hot 
water at a temperature of at least 170°F 
(77°C); 

(B) Immersion for at least two minutes in a clean 
solution containing at least 50 parts per million 
(ppm) of available chlorine at a temperature of 
at least 75°F(24°C); 

(C) Immersion for at least two minutes in a clean 
solution containing at least 12.5 parts p e r 
million ppm of available iodine and having a 
pH not higher than 5.0 and at a temperature of 
atleast75°F(24°C);or 

(D) Immersion for at least two minutes in a clean 
solution containing at least 200 parts p e r 
million ppm of quaternary ammonium products 
and having a temperature of at least 75 °F 
(24 °C), provided that the product is labeled to 
show that it is effective in water having a 
hardness value at least equal to that of the 
water being used. 

(0 For utensils and equipment which are either too large or 
impractical to sanitize in a dishwashing machine or dishwashing 
sink, a spray-on or wipe-on sanitizer shall be used. When 
spray-on or wipe-on sanitizers are used, the chemical strengths 
shall be those required for sanitizing multi-use eating and 
drinking utensils. Spray-on or wipe-on sanitizers shall be 
prepared daily and kept on hand for bactericidal treatment. 

(g) When hot water is used for sanitizing, the following 
facilities shall be provided and used: 

( 1 ) An integral heating device or fixture installed in, on, 
or under the sanitizing compartment of the sink 
capable of maintaining the water at a temperature of 
at least I70°F (77°C); and 

(2) A numerically scaled indicating thermometer, accurate 
to ±3° F (± 1.5°C), convenient to the sink for 
frequent checks of water temperature; and 

(3) Dish baskets of such size and design to permit 
complete immersion of the tableware, kitchenware, 
and equipment in the hot water. 

(h) An approved testing method or equipment shall be 
available, convenient, and regularly used to test chemical 
sanitizers to insure minimum prescribed strengths. 

(i) After sanitization, all equipment and utensils shall be air 



13:2 



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239 



PROPOSED RULES 



dried. 

Authority G.S. 110-91. 

.2813 MECHANICAL CLEANING AND 
SANITIZING 

(a) — If m e chanical dishwashing e quipm e nt is us e d, such 
e quipm e nt shall b e construct e d and op e rat e d in accordanc e with 
National Sanitation Foundation Standards or equal except as 
not e d in Rul e .2 8 10(a)(1) of thi s S e ction. 

(a) {b^ Machine or water line mounted numerically scaled 
indicating thermometers, accurate to ±3°F (± 1.5°C), shall be 
provided to indicate the temperature of the water in each tank of 
the machine and the temperature of the final rinse water as it 
enters the manifold. 

(b} (e) An adequate drainboard or counter top space for the 
proper handling of soiled utensils prior to washing and adequate 
space for the proper handling of cleaned utensils following 
sanitization shall be provided. 

(c) (4) Equipment and utensils shall be flushed or scraped 
and. when necessary, soaked to remove gross food particles and 
soil prior to being washed in a dishwashing machine unless a 
prewash cycle is a part of the dishwashing machine operation. 
Equipment and utensils shall be placed in racks, trays, or 
baskets, or on conveyors, in a way that food-contact surfaces are 
exposed to the unobstructed application of detergent wash and 
clean rinse waters and that permits free draining. 

(d) fe^ Machines using chemicals for sanitization may be 
used provided that a suitable testing method or equipment is 
s hall b e available, convenient, and regularly used to test 
chemical sanitizers to insure minimum prescribed strengths. 

(e) {f) All dishwashing machines shall be thoroughly cleaned 
at least once a day or more often when necessary to maintain 
them in a satisfactory' operating condition. 

(f) (g) After sanitization, all equipment and utensils shall be 
air dried. 

Authority G.S. 110-91. 

.2815 WATER SUPPLY 

(a) Running water under pressure shall be provided in 
sufficient quantities to meet the needs of cooking, cleaning, 
drinking, toilets, and outside uses without producing water 
pressure lower than 20 psi. that required by the North Carolina 
Plumbing Code. 

(b) The water supply shall meet the requirements of 15A 
NCAC 18C or 15A NCAC ISA .1700 Protection of Water 
Supplies. Samples of water shall be collected by the 
Environmental Health Specialist and submitted to a state 
certified laboratory for bacteriological analysis annualK . Other 
tests of water quality, as indicated by possible sources of 
contamination, may be collected by the Environmental Health 
Specialist. 

(c) No cross-connections with an unapproved water supply 
shall exist. If potential back-fiow conditions exist, an approved 
back-fiow prevention device shall be provided. 

(d) Water heating equipment that is sufficient to meet the 
maximum expected requirements of the child day care center 



facility shall be provided. Capacity and recovery rates of hot 
water heating equipment shall be based on number and size of 
sinks, capacity of dishwashing machines, capacity of laundering 
machines, diaper changing facilities, and other food service and 
cleaning needs. Hot and cold water under pressure shall be 
easily accessible to all rooms where food is processed or 
handled, rooms in which utensils or equipment are washed, and 
other areas where water is required for cleaning and sanitizing, 
including lavatories and diaper changing areas. 

(e) Hot water heating equipment shall provide hot water at a 
minimum temperature of 130°F (54°C) at the point of use when 
hot water is not used for sanitizing. When hot water is used for 
sanitizing, a minimum temperature of 140°F (60 °C) shall be 
provided at the point of use. However, hot water to those areas 
accessible to children, including lavatories serving diaper 
changing areas, shall be no less than 90 °F (32°C) and shall not 
exceed 110°F. 110°F (43°C). except that for child care centers 
serving only school-aged children the 90°F (32°C) minimum 
temperature requirement shall not apply. 

Authority G.S. 110-91. 

.2817 TOILETS 

(a) All toilet fixtures and toilet rooms shall be located to 
comply with the requirements of these Rules. Storage in toilet 
rooms shall be limited to toileting and diapering supplies. All 
toilet fixtures shall be easily cleanable, and in good repair. 
Toilet fixtures shall be child-sized, properly adapted adult toilets 
or potty chairs for young toddlers. 

(b) Toilet fixtures shall be cleaned and sanitized when soiled 
and at least on a daily basis. A solution of 100 ppm chlorine 
solution or other equivalent methods approved by the 
Environmental Health Specialist shall be used for sanitizing. 

(c) If potty chairs are used, they shall be located in a toilet 
room equipped with a spray rinse toilet or utility sink, a spray 
rins e toil e t or utility s ink shall b e locat e d in a toil e t room for th e 
purpos e of cl e aning potty chairs. Potty chairs shall be emptied 
rinsed, cleaned and sanitized when soiled or at least on a daily 
basis, with 100 ppm chlorine solution or equivalent method 
approved by the Environmental Health Specialist. 

(d) When cloth diapers are used, the The diaper changing area 
shall be located proximate to a toilet room or flush-rimmed sink. 

Authorit:,-G.S. 110-91. 

.2819 DIAPERING AND DIAPER CHANGING 
FACILITIES 

(a) Infants and toddlers shall be diapered at areas designated 
exclusively for diapering. 

(b) Diapering surfaces shall be smooth, nonabsorbent, easily 
cleanable and shall be approved by the Environmental Health 
Specialist. 

(c) Diapering surfaces shall be kept free of storage and shall 
be cleaned with a mild solution of water and detergent and 
sanitized after each changing. A solution of 100 ppm chlorine 
or equivalent methods approved by the Department 
Environm e ntal H e alth Sp e cialist shall be used for sanitizing. A 
suitable testing method or kit shall be available and used daily to 



240 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



insure compliance with the minimum prescribed strength. This 
sanitizer shall be used from a labeled hand pump spray bottle. 

(d) Each diaper changing area in a child care center facility' 
licen se d for 13 or more childr e n shall include a handwash 
lavatory for caregiv e rs, caregivers, except for centers For a 
facility licensed for fewer less than 1 3 childr e n, children and 
located in a residence. For centers licensed for fewer than 1 3 
children and located in a residence a separate handwash lavatory 
shall be in or near diaper changing areas. 

(e) The use of disposable gloves by caregivers during the 
diaper changing process is required if the worker has cuts or 
sores on hands or chapped hands. Gloves shall be discarded 
after use with each child. 

(f) Caregivers may dispose of feces in diapers in the toilet, 
but shall not rinse soiled cloth diapers, or training pants or 
clothes. Soiled cloth diapers, training pants or clothes shall be 
sent to a diaper service or placed in a tightly closed plastic bag 
or other equivalent container approved by the Environmental 
Health Specialist and sent daily to the child's home to be 
laundered. 

(g) Pre-moistened towelettes or damp paper towels shall be 
used for cleaning children during the changing process. Soiled 
paper or towelettes shall be discarded after use with each child 
and shall be disposed of in a covered plastic-lined receptacle. 

(h) Soiled disposable diapers shall be placed in a cleanable, 
plastic-lined, covered container and removed to an exterior 
garbage area at least daily. 

(i) Whether or not disposable gloves are used, caregivers 
Caregivers shall wash their hands after each diaper change in 
accordance with Rule .2828 of this Section. 

(j) The child's hands shall be washed in the lavatory, or, in 
the case of infants, with single-use, pre-moistened towelettes 
after each diaper change. 

(k) Instructions providing information to care givers in proper 
methods of diaper-changing and handwashing shall be posted in 
each diaper changing area. 

Authority G.S. 110-91. 

.2820 STORAGE 

(a) Rooms or spaces shall be provided for the storage of 
equipment, fijmiture, toys, clothes, beds. cots. mats, and supplies 
and shall be kept clean. Shelving or other storage, constructed 
in a manner to facilitate cleaning, shall be provided for orderly 
storage of supplies, including mats and toys. 

(b) All corrosive agents, insecticides, rodenticides, herbicides, 
bleaches, detergents, polishes, items containing petroleum 
products, any product which is under pressure in an aerosol 
dispensing can, and any substance which may be hazardous to a 
child if ingested, inhaled, or handled shall be stored in a locked 
storage room or cabinet, locked with a combination lock or key. 
Keys shall be kept out of the reach of a child and shall not be 
stored in the lock. 

(c) A properly mixed sanitizing solution and a mild detergent 
solution approved by the Environmental Health Specialist that is 
k e pt in the infant and toddler diap e r changing ar e a s shall not be 
required to be stored in a locked storage room or locked cabinet. 
In these areas, this sanitizer shall be clearly labeled and shall not 



be accessible to infants and toddlers, children. 



(d) Medications shall be stored in a separate locked cabinet 
or other locked container. Medications which require 
refi-igeration shall be stored in a locked box or locked container 
in a designated area for such storage in a refrigerator which is 
not accessible to children. 

(e) Individual cubicles, lockers, or coat hooks shall be 
provided for storage of coats, hats, or similar items. Coat hooks 
not in individual cubicles or lockers, shall be spaced at least 12 
horizontal inches apart. Individual toothbrushes or combs used 
by children shall be labeled and stored in individual toothbrush 
or comb cases or other approved methods. 

Authority G.S. 110-91. 

.2822 FURNITURE AND TOYS 

(a) Furniture shall be of easily cleanable construction, and 
shall be kept clean and in good repair. 

(b) Equipment and toys provided by the child care center 
facility' shall be of easily cleanable construction, and shall be 
kept clean and in good repair. In infant and toddler rooms, 
mouth-contact surfaces shall be cleaned and sanitized in 
accordance with 15A NCAC .2812 of this Section or by other 
means approved by the Department at least daily and more 
ft^equently if necessary. 

(c) Toys, furniture, cribs, or other items accessible to 
children, shall be free of peeling, flaking, or chalking paint. 

(d) Water play activity centers shall be filled just prior to use 
of the center. Water must be dumped at least daily or more often 
if visibly soiled. The water activity unit, including toys, shall be 
cleaned and sanitized at least daily or more often if soiled. 
Wading pools are not water play activity centers and are 
regulated under 15A NCAC 18A .2500. 

Authority' G.S. 110-91. 

.2823 PERSONNEL 

(a) Employees shall wear clean outer clothing and shall be 
clean as to their person and methods of foodhandling and child 
care. Employees shall keep their fingernails clean and trimmed. 

(b) Hair nets, caps, or similar hair restraints shall be worn by 
employees engaged in the preparation of food. Hair spray, 
barrettes, or visors are not considered an effective hair restraint. 

(c) Tobacco use in any form is prohibited in the food 
preparation area, in any part of the child d^ care center facility 
accessible to the children, and in the playground area. 

(d) Persons with a communicable disease or a communicable 
condition shall be excluded from situations in which 
transmission can be reasonably expected to occur, in accordance 
with Communicable Disease Confrol Measures (15A NCAC 
19A .0200). under 15A NCAC 19A .0200. Any person with 
boils, sores, bums, infected wounds or other potentially draining 
lesions on the face, neck, hands, lower arms or other exposed 
skin shall properly bandage affected area to eliminate exposure 
to drainage. If exposure to drainage cannot be eliminated or 
proper handwashing cannot be maintained, then the employee 
shall be excluded from the child care center facility while the 
condition exists. 



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July 15, 1998 



241 



PROPOSED RULES 



(e) Volunteer personnel shall adhere to the same requirements 
in these Rules as employees. 

Author in- G.S. 110-91. 

.2824 FLOORS 

(a) Floors and floor coverings of all food preparation, food 
storage, utensil-washing areas, toilet rooms, and laundr% areas 
shall be constructed of nonabsorbent, easily cleanable, durable 
material such as sealed concrete, terrazzo, ceramic tile, durable 
grades of linoleum or plastic, or tight wood impregnated with 
plastic. 

(b) Floors and floor coverings of all sleeping and play areas 
shall be constructed of easily cleanable, durable materials. 

(c) Carpeting used as a floor covering shall be of closeK 
woven construction, properly installed, and easily cleanable. 
Carpeting is prohibited in food preparation areas, equipment and 
utensil-washing areas, food storage areas, laundr>' areas, and 
toilet rooms. 

(d) Floors in areas accessible to children, shall be free of 
peeling, flaking or chalking paint. 

(e) All floors shall be kept clean and maintained in good 
repair. 

(f) No identified lead poisoning hazards under 15A NCAC 
18A .3101, rule governing Lead Poisoning Prevention jn 
Children. 

Author in- G.S. 110-91. 

.2825 WALLS AND CEILINGS 

(a) The walls and ceilings, including doors and windows, of 
all rooms and areas shall be kept clean and in good repair. All 
walls shall be nonabsorbent and easiK cleanable. 

(b) Ceilings in rooms in which food is stored, handled or 
prepared, utensil-washing rooms, and toilet rooms shall be 
non-absorbent and easiK cleanable. Acoustic ceiling material 
maN be used where ventilation precludes the possibilits of grease 
and moisture absorption. 

(c) Walls and ceilings, including doors and windows in areas 
accessible to children, shall be free of peeling, flaking, or 
chalking paint. 

(d) No identified lead poisoning hazards under 15A NCAC 
18A .3101 rule governing Lead Poisoning Prevention in 
Children. 



(c) If the area is not a separate room, it shall be separated 
from space used by other children by a partition, screen or other 
means approved by the Envirormiental Health Specialist. This 
designated area shall be proximate to a toilet and lavatory, and 
where health and sanitation measures can be carried out without 
interrupting activities of other children and staff. 

.Authority- G.S. 110-91. 

.2828 HANDWASHING 

(a) Employees shall be instructed that handwashing is the 
single most important line of defense in preventing the 
transmission of disease-causing organisms. Employees shall 
wash hands upon reporting for work; before handling food; 
before feeding infants or children; before handling clean utensils 
or equipment; after toileting or handling of body fluids (ergr 
(e.g.. saliva, nasal secretions, vomitus. feces, urine, blood, 
secretions from sores, pustulant discharge); after diaper 
changing; and after handling soiled items such as garbage, mops, 
cloths, and clothing; after removing disposable gloves; and 
before leaving work. 

(b) Children shall wash hands upon arrival at the child care 
center; after each visit to the toil e t and toilet; before eating meals 
or snack s and snacks; before and after water activit>' play. pla\'; 
after handling animals or animal cages; and before going home. 

(c) Proper handwashing procedures shall include: 

(1) Using soap and tempered running water; 

(2) Rubbing hands vigorously with soap and tempered 
water for 1 5 seconds; 

(3) Washing all surfaces of the hands, to include the 
backs of hands, palms, wrists, under fingemails. and 
between fingers; 

(4) Rinsing well for 10 seconds; 

(5) Dr\ing hands with a paper towel or mechanical dryer; 

(6) Turning off faucet with paper towel. 

.Authority- G.S 110-91. 

.2829 WASTEWATER 

All wastewater shall be disposed of in a publically-owTied 
wastewater treatment (POWT) SN'stem or b> an approved 
properh' operating on-site wastewater system. 

Authorin-G.S 110-91. 



.iuthorin- G.S 110-91. 



.1%11 



COMMUNICABLE DISEASES AND 
CONDITIONS 

(a) Any child who becomes ill at the child care center facilitv 
and is suspected of having a communicable disease or 
communicable condition shall be separated from the other 
children until the child leaves the center, facility. 

(b) Each child care center facilit>' shall include a designated 
area for a child who becomes ill. When in use, such area shall 
be equipped w ith a bed, cot or mat and a vomitus receptacle. All 
materials shall be sanitized after each use. Linens and 
disposables shall be changed after each use. 



.2830 SOLID WASTES 

(a) Solid wastes containing food scraps or other putrescible 
materials shall, prior to disposal, be kept in durable, 
rust-resistant, nonabsorbent. water-tight, rodent-proof, and easiK 
cleanable containers such as standard garbage cans which shall 
be covered with tight lids when filled or stored or not in 
continuous use. Refiise including scrap paper, cardboard boxes 
and similar items shall be stored in containers, rooms or 
designated areas approved b>' the Environmental Health 
Specialist. 

(b) Facilities shall be provided for the washing and storage of 
all garbage cans and mops for child day care centers, except for 
centers licensed for fewer than 13 children and located m a 



242 



^BS^^^^B 



\ORTH CAROLINA REGISTER 

m 



July 15, 1998 



13:2 



PROPOSED RULES 



residence, faciliti e s liccnsod for 13 or mor e childr e n. Cleaning 
facilities shall include combination faucet, hot and cold running 
water, threaded nozzle, and curbed impervious pad sloped to 
drain into an approved sanitary sewage system. Other can 
cleaning facilities approved prior to July 1, 1991 shall be 
deemed approved if in good repair and functioning properly. 
Can cleaning facilities replaced after July 1, 1991 shall meet the 
requirements of this Section. 

(c) Where containerized systems are used for garbage storage, 
facilities shall be provided for the cleaning of such systems. A 
contract for off-site cleaning shall constitute compliance with 
this Section. 

(d) Solid wastes shall be disposed of so as to prevent insect 
breeding and public health nuisances. 

Authority G.S. 110-91. 

.2831 ANIMAL AND VERMIN CONTROL: 
PREMISES 

(a) Unrestrained animals, except those used in approved pet 
therapy programs, shall not be allowed in the day care facility, 
including the outdoor play area. Animals shall not be allowed 
in the food preparation areas. Animal cages shall be kept clean. 

(b) Effective measures shall be taken to keep insects, rodents, 
and other vermin out of the child day care centers faciliti es and 
to prevent their breeding or presence on the premises. 

(c) All openings to the outer air shall be protected against the 
entrance of flying insects. For extermination of flying insects, 
only approved pyrethrin-based insecticides or a fly swatter shall 
be used in the food preparation areas. Products shall be used 
only in accordance with directions and cautions appearing on 
their labels. Insecticides shall not come in contact with raw or 
cooked food, utensils, or equipment used in food preparation and 
serving, or with any other food-contact surface. 

(d) Only those pesticides which have been properly registered 
with the appropriate federal regulatory agency and the North 
Carolina Department of Agriculture shall be used. Pesticides 
shall be used in accordance with the directions on the label and 
shall be stored in a locked storage room or cabinet separate from 
foods and medications. 

Authority G.S. 110-91. 

.2832 OUTDOOR AREAS 

(a) The premises, including the outdoor play area, shall be 
kept clean, drained and free of litter and hazardous materials. 
Grass and other vegetation shall be maintained in a manner 
which does not encourage the harborage of vermin. 

(b) All outdoor activity areas shall be kept clean. All debris, 
glass, dilapidated structures, and broken play equipment shall be 
removed. The play areas shall be free from unprotected wells, 
grease traps, cisterns, and utility equipment. 

(c) For outdoor play equipment, the following shall apply: 

(1) Equipment shall be kept in good repair, free of 
peeling, flaking, or chalking paint and free of rust and 
corrosion; 

(2) The sandbox used in outdoor play shall be constructed 
to allow for proper drainage and shall be kept clean. 



(dj No identified lead poisoning hazards under 15A NCAC 
18A .3101 rule governing Lead Poisoning prevention jn 
Children. 

Authority G.S. 110-91. 

.2833 SWIMMING AND WADING POOLS 

(a) Swimming and wading pools shall be designed, 
constructed, operated and maintained in accordance with the 
NtCt Rules Governing Swimming Pools, 1 5 A NCAC 1 8A .2500. 
Copies of these Rules may be obtained from the DENR, 
Division of Environmental Health. Environmental Health 
Services Section, Division of Environm e ntal H e alth. D e partment 
of Environm e nt, H e alth, and Natural R e sourc e s, PO Box 276 8 7, 
29534, Raleigh, North Carolina 27611 76 8 7. 27626-0534. 

(b) Unfiltered and nondisinfected containments of water shall 
not be utilized for water recreation activities. Swimming and 
wading pools, if present, shall be permanent structural features 
of the child care center, facility'. 

Authority G.S. 110-91. 

.2834 COMPLIANCE 

(a) The Environmental Health Specialist shall indicate on the 
Sanitation Standards Evaluation Form for Child Bay Care 
Centers Faciliti es whether the child care center facility is 
superior, approved, provisional, or disapproved. The 
classification shall be posted in the center facility in a 
conspicuous place designated by the Environmental Health 
Specialist. The superior, approved, provisional, or disapproved 
classification of a child day care center facilit>' is based on the 
center's facility's compliance with the standards for construction 
and operation found in this Section. 

(b) The degree of the child care center's facility's compliance 
is indicated by the total demerit-point score which is shown on 
the Sanitation Standards Evaluation Form that the Environmental 
Health Specialist completes. 

( 1 ) For the purpose of issuing a license to a new operator, 
a Sanitation Standards Evaluation Form for Child Day 
Care Centers. Faciliti e s, shall be forwarded to the 
Division of Child Development only when the child 
care center facilit>' can be granted a superior 
classification; 

(2) A child care center facilit>' shall be classified as 
superior if the total demerit score is not more than 15 
and no 6-demerit-point item is violated; 

(3) A child care center facilit>' shall be classified as 
approved if the total demerit score is more than 15 
and not more than 30, and no 6-demerit-point item is 
violated; 

(4) A child care center facilit>' shall be classified as 
provisional if any 6-demerit-point item is violated, or 
if the total demerit-point score is more than 30 but not 
more than 45. This provisional period shall not 
exceed seven days unless construction or renovation 
is necessary to correct any violation, in which case the 
Environmental Health Specialist may allow a longer 
provisional period; 



J3:2 



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July 15, 1998 



243 



PROPOSED RULES 



(5) A child care center facility' shall be classified as 
disapproved if the demerit score is 46 or more, or if 
conditions which resulted in a provisional 
classification have not been corrected in the time 
period specified b> the Environmental Health 
Specialist; 

(6) If the provisional status period exceeds seven days, or 
the child care center facilit>' is disapproved, the 
Division of Child Development shall be notified 
immediateK by forwarding a copy of the inspection 
report to the Division of Child Development. The 
Environmental Health Specialist shall notify the 
Division of Child Development in accordance with 
Rule .2803 of this Section; 

(7) The classification card shall not be removed except by 
or upon the instruction of the Environmental Health 
Specialist. 

Authorin-G.S. 110-88: 110-91. 



■fc-k-k-k'k-k'k'k'k'kitit 



it -it ic "k -k -k it 



Notice is hereby given in accordance with G.S. 1 50B-21.2 
that the Commission for Health Services intends to amend 
rules cited as 15.4 NC.4C 24.4 .0101 - .0102. .0302. .0402 - 
. 0404. Notice of Rule-making Proceedings was published in the 
Register on May 15. 1998. 

Proposed Effective Date: .April 1. 1999 

A Public Hearing will be conducted at 1:00 p.m. on August 5. 
1998 at the .irchdale Building, Ground Floor Hearing Room. 

Reason for Proposed Action: 

ISA yC.AC 24A .0101 - .0102, .0402 - These are technical 
amendments to change name and address of the department as 
a result of re-organization. 

ISA NC.4C 24A .0302, .0403 - .0404 - In conjunction with the 
Migrant Health Program's proposed amendment to 15A NC.4C 
16A .01 08. th is amendment wo uld elim inate the req uirement that 
providers submit an Authorization Request form prior to 
submitting a claim for payment to the program. This would 
reduce paperwork and administrative costs for providers and 
the program. The determination of whether billed services are 
covered by the program would be made fi'om information on the 
claim. 

Comment Procedures: Comments may be submitted in writing 
within 30 dens after the date of publication of this issue of the 
North Carolina Register to Richard F. Moore. Controller's 
Office. Purchase of .Medical Care Services Unit, DHHS, PO Box 
29602. Raleigh. NC 27626-00602. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do not 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2 -month period. 



CHAPTER 24 - GENERAL PROCEDURES FOR 
PUBLIC HEALTH PROGRAMS 

SUBCHAPTER 24A - PAYMENT PROGRAMS 

SECTION .0100 - GENERAL PROVISIONS 

.0101 GENERAL 

(a) The purpose of this Subchapter is to establish uniform 
policies and procedures for the administration of all Department 
of Environm e nt. H e alth, and Natural R e sourc es ' Health and 
Human Services' payment programs. These Rules are intended 
to facilitate efficient financial eligibility and payment 
mechanisms with a mutual goal of the Department and the 
providers to render appropriate services to eligible patients. 

(b) In the event of conflict between the rules in this 
Subchapter and the rules adopted by the various payment 
programs, the rules of this Subchapter will control. 

(c) The rules of this Subchapter shall not apply to the North 
Carolina Hemophilia Assistance Plan. 1 5 A NCAC 2 1 F . 1 1 00 or 
to the Home Health Program. 15A NCAC 16A .0200. 

(d) Persons who wish to receive rule-making notices 
concerning the rules in this Subchapter must submit a written 
request to the Purchase of Medical Care Services, S e rvic e s 
S e ction. PO Box 27687. 29602. Raleigh, NC 27611 76 8 7. 
27626-0602. The request must specify the calendar year during 
which the person wishes to receive the notices. A check for ten 
dollars ($10.00) made payable to the NC Department of 
Environm e nt. H e alth, and Natural R e sourc e s Health and Human 
Services must be enclosed with each request to cover the cost of 
printing and mailing the notices for the year specified. The fee 
is non-refundable if there are no notices during the year. 



.Authority G.S. 130A-5(3): 130.4-124: 130A-12: 
130A-205: 150B-21.2(b). 



130A-129: 



.0102 DEFINITIONS 

The following definitions shall apply throughout this 
Subchapter: 

( 1 ) "Benefits" means the purchase of medical or dental 
care on a fee-for-service basis. "Benefits" also means 
the purchase of medical or dental appliances. 

(2) "Department" means the Department of Environm e nt. 
H e alth, and Natural R e sourc es , Health and Human 
Services, or its contractor. 

(3) "Inpatient services" means medical or dental care 
administered to a person who has been admitted to a 
hospital. 

(4) "Outpatient services" means medical or dental care 
administered without admission to a hospital. 

(5) "Payment programs" refers to Department program 
activities involving the purchase of medical or dental 
care on a fee-for-service basis or the purchase of 
medical or dental appliances, either through direct 
paN'ment or through contracts with local health 
departments, other agencies, or private institutions. 
These activities are administered in the following: 
(a) Children's Special Health Services, 



244 



.NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



(b) Cancer Program, 

(c) Kidney Program, 

(d) Maternal and Child Health Program, 

(e) Migrant Health Program, 
(0 School Health Fund, 

(g) Sickle Cell Program. 

(h) HIV Medications Program, and 

(!) Adult Cystic Fibrosis Program. 

(6) "Provider" means a person or entity who administers 
medical or dental care or furnishes medical or dental 
appliances imder any of the payment programs. 

(7) "Authorization" means agreement by a payment 
program to pay for a medical or dental service or 
appliance provided all requirements in 15A NCAC 
24A are met. 



other payors were billed. Providers of pharmacy 
outpatient services are required to bill Medicaid. 
However, they are not required to bill other third party 
payors and wait six months before billing the 
Department but are required to refund the Department 
if other third party payments are received. 

(7) The Department shall pay or deny a claim within 45 
days after receipt of a completed claim. 

(8) Authorization Requests and claims for payment shall 
be submitted on forms approved by the Department. 

Authohtv G.S. 130A-5(3): I30A-124: I30A-I27: I30A-I29: 
130A-205. 

SECTION .0400 - REIMBURSEMENT 



Authoritx' G.S. 130A-5(3): 130A-124: 130A-127; 130A-129: 
130A-177: 130A-205. 

SECTION .0300 - ELIGIBILITY PROCEDURES 

.0302 AUTHORIZATIONS AND CLAIMS 
PROCESSING TIME FRAMES 

The following time frames shall apply to all payment 
programs: 

(1) An Authorization Request must be received by the 
Department within one year after the date of service 
or it will be denied, denied, except in the Migrant 
Health Program where authorizations are not used. 

(2) The Department shall respond to an Authorization 
Request within 45 days after receipt. 

(3) If additional information is requested, this information 
must be received within one year after the date of 
service or within 30 days after the date of the 
Department's request, whichever is later, or the 
Authorization Request will be denied. 

(4) The Department shall approve or deny an 
Authorization Request within 45 days after receipt of 
all necessary information. 

(5) A claim for payment must be received by the 
Department within one year after the date of service 
or within 45 days after the date of authorization 
approval, whichever is later, or the claim will be 
denied. Corrections to claims and requests for 
payment adjustment must be received by the 
Department within one year after the date of service 
or within 45 days after the date the claim is paid or 
returned for additional information, whichever is later, 
or the claim will be denied. 

(6) If there are other third party payors, a claim must 
show payments by those payors or it must include 
copies of the denials of payment from those payors. 
Providers must bill other payors and wait at least six 
months after the date of service to receive payment or 
denial of payment before billing the Department. If 
no response has been received within six months after 
the date of service, the provider may bill the 
Department, but the claim must state the date that the 



.0402 REIMBURSEMENT FOR INPATIENT 
HOSPITALIZATION 

The Department shall reimburse providers of authorized 
inpatient hospitalization services at 80 percent of the hospital's 
inpatient cost rate, which is then applied to the amount billed for 
authorized services. The inpatient cost rate is a ratio of cost to 
charges that is derived from audited cost reports and is obtained 
from the Division of Medical Assistance. The Department shall 
use the cost rate in effect on the date a claim is received, and 
refroactive adjustments to claims paid shall not be made. If a 
cost rate cannot be obtained for an out-of-state hospital, the 
Department shall reimburse the hospital at 75 percent of the 
billed amount for authorized services. The cost rates and any 
subsequent amendments and editions are incorporated herein by 
reference in accordance with G.S. I50B-21.6. The cost rates can 
be obtained from the Office of the Controller. Purchase of 
Medical Care Services. S e rvic e s S e ction. PO Box 276 8 7. 29602. 
Raleigh, NC 27611 76 8 7. 27626-0602. 

Authority G.S. 130A-5(3); 130A-124: 130A-127; 130A-129; 
130.4-205: 130.4-223. 

.0403 REIMBURSEMENT FOR PROFESSIONAL, 
OUTPATIENT, OTHER SERVICES 

(a) The Department shall reimburse providers of authorized 
outpatient services, professional services, and all other services 
not otherwise covered in the rules of this Section at the Medicaid 
rate in effect at the time the claim is received by the Department, 
except in the Migrant Health Program. 

(b) TTie Migrant Health Program shall reimburse providers of 
program covered authoriz e d outpatient, professional, and other 
services at the Medicaid rate in effect at the time the claim is 
received minus the allowable patient copayment to a maximum 
program payment of one hundred fifty dollars ($150.00) per 
claim, per date of service. The allowable patient copayment is 
three dollars ($3.00) for each prescribed drug and five dollars 
($5.00) per claim, per date of service for all other services. The 
one hundred fifty dollar ($150.00) limit shall not apply to drugs, 
medical supplies, and durable medical equipment. 

Authority G.S 130A-5(3): 130A-124; 130A-127; 130A-129; 
130A-205; 130A-223. 



13:2 



NOR TH CAROLINA REGISTER July 15,1 998 



245 



PROPOSED RULES 



.0404 REIMBURSEMENT FOR SERVICES NOT 
COVERED BY MEDICAID 

(a) The Department shall reimburse providers of authorized 
mobilit\ systems (including components and accessories), 
environmental control units, and custom seating systems for 
which there are no Medicaid reimbursement rates at the 
manufacturer's catalog price less five percent. 

(b) The Department shall reimburse providers of authorized 
prosthetics and orthotics at the Medicare rate of reimbursement 
when there is no Medicaid rate of reimbursement for the item. 
When there is neither a Medicaid rate nor a Medicare rate for the 
item, the Department shall reimburse at the provider's usual 
charge to the general public. 

(c) The Department shall reimburse providers of authorized 
equipment repair services for which there are no Medicaid 
reimbursement rates at forty five dollars ($45.00) per hour. 

(d) The Department shall reimburse physicians and dentists 
for authorized services for which there are no Medicaid rates at 
the Medicaid rate for a comparable procedure as determined by 
the program's medical director or at 80 percent of the amount 
billed, whichever is less. 

(e) The Department shall reimburse providers of authorized 
assistive listening devices and those types of hearing aids for 
which there are no Medicaid rates at invoice cost plus the 
Medicaid dispensing fee for a new hearing aid(s). 

(f) The Department shall reimburse providers of authorized 
amplification-related services for which there are no Medicaid 
rates at the rates paid for audiology services under Medicaid's 
Independent Practitioner Program. 

(g) The Department shall reimburse providers of authorized 
services not otherwise specified in this Section, for which there 
are no Medicaid reimbursement rates, at the provider's usual 
charge to the general public. 

(h) The Department shall reimburse providers under the 
Migrant Health Program at the rates specified in thjs Rule. 
Services do not have to first be authorized: hov\ever. 
reimbursement is contingent upon client eligibilit\. the provision 
of services covered by the program, and availability of funds. 



Authohn- G.S. 130.4-5(3): 
130.4-205. 



130.4-124: 130.4-12': 130.4-129: 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 14 - BOARD OF COSMETIC 
ART EXAMINERS 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the S.C. State Board of Cosmetic Art Examiners 
intends to amend rule cited as 21 NC.4C 141 . 010'. Notice of 
Rule-making Proceedings was published in the Register on May 
15. 1998. 



A Public Hearing will be conducted at 1:00 p.m. on August 12, 
1998 at the N.C. State Board of Cosmetic Art Examiners, 1201- 
110 Front St.. Raleigh. NC 27609. 

Reason for Proposed Action: To eliminate students from 
enrolling in more than one school at the same time. 

Comment Procedures: Written comments concerning this 
rule-making action must be submitted by August 14, 1998 to Dee 
Williams. Rule-Making Coordinator. NC State Board of 
Cosmetic Art Examiners. 1201-1 10 Front. Raleigh, NC 27609. 

Fiscal Note: This Rule does not affect the expenditures or 
revenues of state or local government funds. This Rule does not 
have a substantial economic impact of at least five million 
dollars (55,000,000) in a 12-month period. 

SUBCHAPTER 141 - OPERATIONS OF 
SCHOOLS OF COSMETIC ART 

SECTION .0100 - RECORD KEEPING 

.0107 REPORT OF ENROLLMENT 

(a) A cosmetic art school shall report cosmetology 
enrollments to the Board not later than 30 working days after a 
student enrolls in school. A cosmetic art school shall report 
manicurist enrollments to the Board not later than 15 working 
days after a student enrolls in school. If a student's enrollment 
is not reported within 30 working days for cosmetology and 15 
working da\'s for manicurist, the cosmetic art school shall file 
a copy of the student's daily time records when it reports the 
student's enrollment. 

(b) A student whose enrollment has not been properly 
reported to the Board will not be accepted for either the 
cosmetology examination or the manicurist and no hours will be 
credited. 

(€^ — Examiners' Stat e m e nt of Purpos e for Cosm e tic Art 
Education shall bo given to e ach stud e nt at th e tim e of 
enrollm e nt. An acknowl e dgment of r e c e ipt of this ahall b e 
s ign e d by the s tud e nt and kept by th e cosm e tic art school with 
the p e rman e nt r e cords of th e stud e nt. 

(c) A student can only be enrolled in one school during any 
given time period. 

Authority- G.S 88-23: 88-30. 

******************** 



CHAPTER 46 - BOARD OF PHARMACY 

Notice is hereby given in accordance with G.S. 150B-21.2 
that the North Carolina Board of Pharmacy intends to 
amend rule cited as 21 NCAC 46 . 1804. Notice of Rule-making 
Proceedings was published in the Register on November 3, 
1997. 



Proposed Effective Date: .4pnl 1. 1999 



Proposed Effective Date: .4ugust 1, 1999 



246 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



PROPOSED RULES 



A Public Hearing will be conducted at 10:00 a.m. on 
September 14, 1998 at the Institute of Pharmacy, Auditorium, 
109 Church Street, Chapel Hill, NC 27516. 

Reason for Proposed Action: To prohibit the alteration of 
prescription orders by a party outside the practitioner- 
pharmacist-patient relationship and to spec iff requirements for 
delivery of prescription drugs, devices, and medical equipment 
to a patient off site. 

Comment Procedures: Persons wishing to present oral data, 
views or arguments on a proposed rule or rule change, may file 
a notice with the Board at least 10 days prior to the public 
hearing at which the person wishes to speak. Comments should 
be limited to 10 minutes. The Board's address is PO Box 459. 
Carrboro, NC 27510-0459. Written submission of comments or 
argument will be accepted at any time up to and including 
September 14, 1998. 

Fiscal Note: These Rules do not affect the expenditures or 
revenues of state or local government funds. These Rules do 
have a substantial economic impact of at least five million 
dollars ($5,000,000) in a 1 2-month period 



SECTION .1800 - PRESCRIPTIONS 



.1804 



PRESCRIPTION: RECEIVING AND 
DISPENSING 

(a) In order to assure that the practitioner-pharmacist-patient 
relationship exists and to promote the safe and secure 
distribution of drugs and devices, prescription orders may be 



received for fiihng and refilHng only by a pharmacist or a bona 
fide employee of the pharmacy. The pharmacist-manager of the 
pharmacy shall be ultimately responsible for the safe, lawful and 
secure receipt of prescription orders and delivery of prescription 
drugs. Notwithstanding the provisions of this Rul e , pr e scription 
drugs also may b e d e liv e r e d by mail in accordanc e with th e 
provisions of Rul e 21 NCAC 16.1601(7). A party outside the 
practitioner-pharmacist-patient relationship may not cause or 
attempt to cause the alteration of a prescription order. 

(b) In order to promote the safe and secure distribution of 
drugs, devices, and medical equipment, prescription orders may 
be received for filling and refilling only by the person in charge 
of the facility holding the device and medical equipment permit 
or a bona fide employee of the facility. The person in charge 
shall be ultimately responsible for the safe, lawful and secure 
receipt of prescription orders and delivery of prescription drugs, 
devices, and medical equipment. 

(c) Prescription drugs, devices and medical equipment may be 
delivered off site to the patient, by mail or otherwise, including 
deliveries by pharmacies permitted under G.S. 90-85.21 A. if at 
the time of delivery, the permit holder or delivery agent obtains 
the signature of a person accepting delivery on behalf of the 
patient. The document bearing the signature or a copy shall be 
maintained in the pharmacy for three years with the other records 
concerning the dispensing of the prescription drugs, devices or 
medical equipment and be readily retrievable. Deliveries from 
one health care facility pharmacy to another or within a health 
care facility are not governed by this Paragraph. 

Authoriti' G.S 90-85.6: 90-85.21 A: 90-85.32. 



13:2 



NORTH CAROLINA REGISTER 



Julv 15, 1998 



247 



TEMPORAR Y R ULES 



The Codifier oj Rules has entered the following temporaiy ruleis) in the Xorth Carolina Administrative Code. Pursuant 
to G.S. 150B-2 1.1(e), publication of a temporary rule in the S'orth Carolina Register serves as a notice of rule-making 

proceedings unless this notice has been previously published by the agency. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

Rule-making Agency: DHHS - Division of Medical Assistance 

Rule Citation: 10 \C.4C 26H .0401 

Effective Date: July 22. 1998 

Findings Reviewed and Approved by: Julian Mann 111 

Authority for the rule-making: G.S. 108A-25(b) 

Reason for Proposed Action: To rebase Medicaid allowables 
utilizing updated Resource Based Relative Value System 
(RBRVS). 

CHAPTER 26 - MEDICAL ASSISTANCE 

SUBCHAPTER 26H - REIMBURSEMENT PLANS 

SECTION .0400 - PROVIDER FEE SCHEDULES 

.0401 PHYSICIAN'S FEE SCHEDULE 

(a) Effective Januar. 1. 1995. (see Paragraph (b) of this Rule) 
ph> sicians' ser% ices whether furnished in the office, the patient's 
home, a hospital, a nursing facilit> or elsewhere will be 
reimbursed based on the North Carolina Medicaid Fee Schedule, 
except for pa\ments to the \arious Medical Faculty Practice 
Plans of the L'ni\ersit\ of North Carolina - Chapel Hill and East 
Carolina Uni\ersit> which will be reimbursed at cost and cost 
settled at \ ear end. Effecti\e Januan. L 1998. the Th« North 
Carolina Medicaid Fee Schedule is based on the Medicare Fee 
Schedule Resource Based Relatise Value System (RBRVS). in 
effect in fiscal \ ear 1993 1997 [as adopted by. Medicare at 56 
F.R. 59501 (November 2x 1991. effecti\e Januar\ L 1992. 
applicable to ser%ices furnished beginning January J^ 1992)]. but 
with the following clarifications and modifications: 

(1) A maximum fee is established for each service and is 
applicable to all specialties and settings in which the 
ser% ice is rendered. Pasment is equal to the lower of 
the maximum fee or the pro\ iders customary charge 
to the general public for the particular service 
rendered. 

(2) Fees are established on a statewide basis using the 
Medicare Geographic Practice Cost Indices for North 
Carolina. 

(3) There will be no transition period in appKing the 
Medicaid fees whereas Medicare has a fl\e year 
phase-in period. 

(4) Annual changes in the Medicaid pa\ments will be 
applied each January 1 and fee increases will be 
applied based on the forecasted Gross National 



Product (GNP) Implicit Price Deflator. Said annual 
changes in the Medicaid payments shall not exceed 
the percentage increase granted by the North Carolina 
General AssembK. 

(5) Fees for ser\ices deemed to be associated with 
adequac) of access to health care services may be 
increased based on administrative review . The service 
must be essential to the health needs of the Medicaid 
recipients, no other comparable treatment available 
and a fee adjustment must be necessary to maintain 
physician participation at a level adequate to meet the 
needs of .Medicaid recipients. A fee may also be 
decreased based on administrative re\iew if it is 
determined that the fee ma\ exceed the Medicare 
allowable amount for the same or similar ser\ ices, or 
if the fee is higher than Medicaid fees for similar 
ser\ices. or if the fee is too high in relation to the 
skills, time, and other resources required to provide 
the particular sen. ice. 

(6) Fees for new ser\ices are established based on this 
Rule, utilizing the most recent RBRVS. if applicable. 
If there is no relative value unit (RVU) available from 
Medicare, fees w ill be established based on the fees 
for similar services. If there is no RVU or similar 
sen.ice. the fee will be set at 75 percent of the 
pro\ ider's customary charge to the general public. 

(b) This reimbursement limitation shall become effecti\e in 
accordance with the provisions of G.S. 108A-55(c). These 
changes to the PhNsician's Fee Schedule allowables will become 
effective when the Health Care Financing Administration. U.S. 
Department of Health and Human Ser\ices. approves 
amendment to HCF.A b\ the Director of the Di\ision of Medical 
Assistance on or about Januar\ 1. 1998 as =MA 98-07. wherein 
the Director proposes amendments of the State Plan to amend 
Physician's Fee Schedule. 

History Sote: Authority G.S. 108A-25fb): 

Eff. October 1. 1982: 

.Amended Eff. July 1. 1995: January 4. 1993: June 1. 1990: 

December I. 1988: 

Temporary .Amendment Eff. January 22. 1998: 

Temporar\- .Amendment Eff. July 22. 1998. 



248 



\ORTH C.4ROLI.\A REGISTER 



July 15. 1998 



13:2 



APPROVED RULES 



This Section includes the Register Notice citation to Rules approved by the Rules Review Commission (RRC) at its meeting of 
May 21, 1998 pursuant to G.S. 150B-21. 1 7(a)(1) and reported to the Joint Legislative Administrative Procedure Oversight 
Committee pursuant to G.S. 150B-21.16. The full text of rules are published below when the rules have been approved by RRC 
in a form different from that originally noticed in the Register or when no notice was required to be published in the Register. 
The rules published in full text are identified by an * in the listing of approved rules. Statutory Reference: G.S. 150B-21. 1 7. 

These rules unless othemise noted, will become effective on the 3 1st legislative day of the 1998 Short Session of the General 
Assembly or a later date if specified by the agency unless a bill is introduced before the 31st legislative day that specifically 
disapproves the rule. If a bill to disapprove a rule is not ratified, the rule will become effective either on the day the bill receives 
an unfavorable final action or the day the General Assembly adjourns. Statutory reference: G.S. 1508-21. 3. 



APPROVED RULE CITATION 



REGISTER CITATION TO THE 
NOTICE OF TEXT 



02 


NCAC 


34 


.0404* 


10 


NCAC 


30 


.0207 


10 


NCAC 


41F 


.0707 


10 


NCAC 


41F 


.0813 


10 


NCAC 


47A 


.0502 


10 


NCAC 


47B 


.0303 - .0304 


10 


NCAC 


47B 


.0305* 


10 


NCAC 


47B 


.0403* 


15A 


NCAC 


lOF 


.0303* 


21 


NCAC 


68 


.0305* 



12 


14 NCR 1242 


12 


14 NCR 1347 


12 


11 NCR 938 


12 


11 NCR 938 


12 


11 NCR 939 


12 


11 NCR 939 


12 


11 NCR 939 


12 


11 NCR 939 


not required, G.S. 1508-21. 5(b)(1) 


12 


15 NCR 1426 



TITLE 2 - DEPARTMENT OF AGRICULTURE 

CHAPTER 34 - STRUCTURAL PEST CONTROL 
DIVISION 



SUBCHAPTER 47B - ELIGIBILITY 
DETERMINATION 

SECTION .0300 - COVERAGE 



SECTION .0400 - PUBLIC SAFETY 

.0404 NOTIFICATION 

The licensee or the certified applicator and their employees 
shall reveal the name, active ingredient(s), formulation, and EPA 
Registration No. of any pesticide applied on any property, on 
request to: 

( 1 ) the client or his authorized agent, the property owner 
or occupants; 

(2) a physician or other emergency medical personnel; 

(3) the Committee; or 

(4) the Division. 



.0305 CD-SA: CERTAIN DISABLED 

CD-SA coverage shall be provided only for persons who are: 
( I ) ineligible for SSI and are not receiving SSI; 

in need; 

not inmates of correctional facilities; 

not patients in institutions for mental disease; 

residing in North Carolina voluntarily with the intent 

to remain and meet the North Carolina residency 

requirement for Special Assistance; 

U.S. citizens or aliens lawfully admitted for 

permanent residence; and 
(7) not receiving Medicaid for the same month. 



(2) 
(3) 
(4) 
(5) 



(6) 



History Note: Authority^ G.S. 106-65.29: 
Eff. July 1, 1976: 

Readopted Eff. November 22. 1977: 
Amended Eff April L_ 1999: August I, 1980. 



TITLE 10 - DEPARTMENT OF HEALTH 
AND HUMAN SERVICES 

CHAPTER 47 - STATE/COUNTY SPECIAL 
ASSISTANCE FOR ADULTS 



HistoiyNote: Authority G.S 108A-25: 108A-41(b): 

1438-153: 

Eff.Januaiyl. 1983: 

Amended Eff. November 2, 1992: February 1, 1986; 

Temporary Amendment Eff. October 28, 1997; 

AmendedEff. April 1. 1999. 

SECTION .0400 - ELIGIBILITY FACTORS 

.0403 RESIDENCE 

(a) State Residence Eligibility Requirement. An individual 
must be a resident of North Carolina and meet the requirements 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



249 



APPROVED RULES 



in G.S. 108A-4 1(b)(3) to be eligible for Special Assistance. 

(b) Moving Into, Visiting In, or Moving Out of North 
Carolina. 

(1) Moving into or visiting in North Carolina from other 
states. 

(A) An individual who moves to or visits in North 
Carolina cannot be Group 1 regardless of his 
status in the previous state. 

(B) If an individual moves to North Carolina 
voluntarily and states his intent to remain, he is 
a resident of North Carolina. This includes 
anyone who enters North Carolina because of 
a job commitment or seeking work but is not 
receiving assistance from another state. He 
must apply at the county department of social 
services in the county in which he resides. 

(C) An individual visiting in the state without a 
stated intent to remain is ineligible for Special 
Assistance. 

(2) An individual who moves to another state and intends 
to remain there is not eligible for Special Assistance. 

(c) County Residence Eligibility Requirement. 

( 1 ) An individual ordinari ly has residence in the county in 
which he resides. However, if he is in a hospital, 
mental institution, intermediate care facility, skilled 
nursing home, boarding home, confinement center or 
similar facility, the county in which the facility is 
located may not be his legal residence. Except for 
Subparagraphs (2) and (3) of this Paragraph, the 
count)' of legal residence would be the county in 
which the individual lived in private living 
arrangements prior to entering a facility. 

(2) A woman in domiciliary care has the county residence 
of her husband. 

(3) If a disabled adult child (DAC) has remained in a 
facility (Example: domiciliary care), he remains a 
resident of the county and state in which his parent(s) 
had residence immediately prior to his reaching age 
18. If he as an adult is entering domiciliary care and 
it is not possible to trace his county of residence as a 
minor, he may establish residence based on his intent 
to remain regardless of his parent's current legal 
residence. 

(d) Temporary Absence. 

(1) A domiciliar> care applicant or recipient shall not 
receive Special Assistance for days he is not living in 
the rest home unless he is expected to return within 30 
days. 

(2) Temporary absence from the state or county of 
residence with subsequent return or intent to return 
does not make a Certain Disabled recipient in a 
private living arrangement ineligible. 

(e) Verification. The worker shall accept the applicant's or 
recipient's statement unless there is some reason to doubt it. If 
there is doubt, documentar) evidence shall be required. If a 
Certain Disabled recipient's visit to another county within the 
state or to another state exceeds three months, the eligibility 
specialist in the responsible county shall verify the following: 



(1 ) the recipient's intent to return; 

(2) reason for the continuing absence; and 

(3) the continuing maintenance of a home in the first 
county. 

History Note: Authority G.S. I08A'41; 108A-41(h); 143B- 

153; 

Eff January 1. 1983: 

Amended Eff. June 1. 1990: 

Temporary Amendment Eff. October 28, 1997; 

Amended Eff. April l . 1999. 



TITLE 15A - DEPARTMENT OF ENVIRONMENT 
AND NATURAL RESOURCES 

CHAPTER 10 - WILDLIFE RESOURCES AND 
WATER SAFETY 

SUBCHAPTER lOF - MOTORBOATS AND 
WATER SAFETY 

SECTION .0300 - LOCAL WATER 
SAFETY REGULATIONS 

.0303 BEAUFORT COUNTY 

(a) Regulated Areas. This Rule applies to the following 
waters in Beaufort County: 

( 1 ) that portion of Broad Creek bounded on the north by 
a line running due east and west across Broad Creek 
through a point 1400 feet due north of Red Marker 
No. 6, on the south by a line running east and west 
across Broad Creek through the location of Red 
Marker No. 4, on the east and west by the high-water 
mark on Broad Creek: 

(2) that portion of Blounts Creek 100 yards on either side 
oftheSR 11 12 Bridge; 

(3) that portion of Blounts Creek beginning 100 yards 
below the Old Crist Landing and extending upstream 
to the NC 33 bridge; 

(4) the waters of Battalina Creek, within the territorial 
limits of the Town of Belhaven; 

(5) the navigable portion of Nevils Creek extending 
upstream from its mouth at the Pamlico River; and 

(6) that portion of Blounts Creek beginning 50 yards on 
the south side and 300 yards on the north side of the 
Blounts Creek Bridge. 

(b) Speed Limit. It is unlawful to operate a vessel at greater 
than no-wake speed in the regulated areas described in 
Paragraph (a) of this Rule. 

(c) Placement and Maintenance of Markers. The Board of 
Commissioners of Beaufort County and the City Council of the 
City of Washington are designated as suitable agencies for 
placement and maintenance of the markers implementing this 
Rule. 

History Note: Authority G.S. 75A-3; 75A-15: 
Eff. February 1. 1976; 



250 



NORTH CAROLINA REGISTER 



Ju/v 15, 1998 



13:2 



APPROVED RULES 



Amended Eff. June L 1998; April 1. 1997; June 1, 1989; March 
1, 1987; April 1. 1986; March 4. 1979. 



TITLE 21 - OCCUPATIONAL LICENSING 
BOARDS 

CHAPTER 68 - CERTIFICATION BOARD FOR 
SUBSTANCE ABUSE PROFESSIONALS 

SECTION .0300 - CLINICAL SDDICTIONS 
SPECIALIST 

.0305 CERTIFICATION REQUIREMENTS FOR 
INDIVIDUAL APPLICANT 

In addition to meeting the requirements of G.S. 90-1 13.40, an 
applicant seeking certification as a clinical addictions specialist 
shall submit the following, if applicable: 

(1) Documentation evidencing membership in good 
standing in the professional discipline if seeking 
certification pursuant to Sections 17 or 18; 

(2) Documentation evidencing that 12 hours of 
HIV/AIDS training and education and six hours of 
professional ethics training were included in the 180 
hours completed for certification in the core 
competencies by the applicant not in the deemed 
status group; 

(3) Copy of a substance abuse specialty certificate or its 
equivalent; 

(4) Copy of his or her masters' or doctorate degree 
diploma; 

(5) Completed registration form; and 

(6) Payment of the following fees: 



(a) All applicants who are in the deemed status 
group shall make payment of a non-refundable 
application fee of ten dollars ($10.00) and 
payment of a non-refundable certification fee 
offorty dollars ($40.00). 

(b) All other applicants shall make payment of a 
non-refundable application fee of twenty-five 
dollars ($25.00) and payment of a non- 
refundable certification fee of one hundred 
dollars ($100.00). 

(c) All applicants seeking certification pursuant to 
Criteria A of G.S. 90-1 13.40(c) shall make 
payment of a non-refundable written 
examination fee of one hundred dollars 
($100.00) and payment of a non-refundable 
oral examination fee of one hundred dollars 
($100.00). 

(d) All applicants seeking certification pursuant to 
Criteria B of G.S. 90-1 13.40(c) shall make 
payment of a non-refundable written 
examination fee of one hundred dollars 
($100.00). 

(e) All applicants seeking certification pursuant to 
Criteria C of G.S. 90-1 13.40(c) shall make 
payment of a non-refundable oral examination 
fee of one hundred dollars ($100.00). 

History Note: Authority G.S. 90-113.30; 90-113.33; 90- 
113.38; 90-113.40; 90-113.41; 90-113.43; 
Tertjporary .Adoption Ejf. November 15, 1997; 
Eff. .April ' 1 . 1999. 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



251 



RULES REVIEW COMMISSION 



1 his Section contains the agenda for the next meeting of the Rules Review Commission on Thursdaw July 23, 1998. 10:00 
a.m. . at 1307 Glenwood .Ave.. .Assembly Room. Raleigh. NC. .Anyone wishing to submit written comment on any rule before 
the Commission should submit those comments to the RRC staff, the agency, and the individual Commissioners by Monday. 
July 20. 1998. at 5:00 p.m. Specific instructions and addresses may be obtained from the Rules Reviev,- Commission at 919- 
''33-2''21. .Amone wishing to address the Commission should notif- the RRC staff and the agency at least 24 hours prior to 
the meeting. 



RULES REVIEW COMMISSION MEMBERS 



Appointed by Senate 

Teresa L. SmalKvood. Vice Chairman 

Jim Funderburke 

Vemice B. Howard 

Philip O. Redwine 

David Twiddy 



Appointed by House 

Paul Powell, Chairman 

Anita White, 2"" Vice Chairman 

Mark Garside 

Steve Rader 

George Robinson 



RULES REVIEW COMMISSION MEETING DATES 



July 23, 1998 
August 20, 1998 
September 17. 1998 



October 15, 1998 
November 19. 1998 



MEETING DATE: JULY 23, 1998 

LOG OF FILINGS 

RULES SUBMITTED: MAY 20, 1998 THROUGH JUNE 20, 1998 



AGENCY/DIVISION RULE NAME 

DHHS/SECRETARY OF DHHS 

Governor Morehead School Campus Parking 

DHHS/DIVISION OF MEDICAL ASSISTANCE 

Rate Setting Methods 

DRG Rate Setting Methodolog> 

Phvsician's Fee Schedule 



RULE CITATION 



10NCAC21B.0117 



10NCAC06H.0102 
10NCAC06H.0211 
10NCAC26H .0401 



ACTION 



Adopt 



Amend 
Amend 
Amend 



DENR/COASTAL RESOURCES COMMISSION 

Use Standards 



15NCAC07H .0310 Amend 



DENRAVILDLIFE RESOURCES COMMISSION 

Brunswick County 

Granville. Vance & Warren Counties 

StanK Count} 

Montgomery County 

DENR/COMMISSION FOR HEALTH SERVICES 

Definitions 

Persistent Elevated Blood Lead Level 

Examination and Testing 

Investigation 

Lead Poisoning Hazard 

Abatement and Remediation 



15NCAC lOF 


0305 


Amend 


15NCAC lOF 


0311 


Amend 


15NCAC lOF 


0317 


Amend 


15NCAC lOF 


0327 


Amend 


15NCAC 18A 


.3101 


Amend 


15NCAC 18A 


.3102 


Amend 


15NCAC 18A 


.3103 


Amend 


15NCAC 18A 


.3104 


Amend 


15NCAC 18A 


.3105 


Amend 


15NCAC 18A 


.3106 


Amend 



252 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



RULES REVIEW COMMISSION 



Maintenance Standard 

Application and Issuance of Certificate 

Revocation and Denial of Certifiate 

Monitoring 

Resident Responsibilities 

COSMETIC ART EXAMINERS, BOARD OF 

Address 

OFFICE OF ADMINISTRATIVE HEARINGS 

Content and Filing Procedures 



15NCAC 18A.3107 Adopt 

15NCAC 18A.3108 Adopt 

15NCAC 18A.3109 Adopt 

15NCAC 18A.3110 Adopt 

15NCAC 18A.3111 Adopt 



21 NCAC 14A.0104 Amend 



26 NCAC 04 .0202 



Amend 



RULES REVIEW COMMISSION 

June 18,1998 
MINUTES 

The Rules Review Coinmission met on June 1 8, 1998. in the Rules Review Commission Conference Room of the Methodist Building, 
1307 Glenwood Avenue, Raleigh, North Carolina. Commissioners in attendance were Vice Chairman Teresa L. Smallwood, Vemice 
B. Howard, George S. Robinson, Jim R. Funderburk. Steven P. Rader, and David R. Twiddy (by phone). 

Staff members present were: Joseph J. DeLuca, Staff Director; Bobby Bryan, Rules Review Specialist; and Sandy Webster. 

The following people attended: 



Valerie Chaffm 
Charlotte Hall 



Hunton & Williams 
DHHS/MH/DD/SAS 



APPROVAL OF MINUTES 

The meeting was called to order at 10:20 a.m. with Vice Chairman Smallwood presiding. She asked for any discussion, comments, 
or corrections concerning the minutes of the May 21, 1998 meeting. There being none, the minutes were approved. 

FOLLOW-UP MATTERS 

10 NCAC 41 A .0007 - DHHS/Social Services Commission: The agency responded that they needed additional time and would 
respond at next month's meeting. 

10 NCAC 47B .0102 - DHHS/Social Services Commission: The rewritten rule submitted by the agency was approved by the 
Commission. 

12 NCAC 7D .0204 - JUSTICE/NC Private Protective Services Board: The rewritten rule submitted by the agency was approved 
by the Commission 

12 NCAC 7D .1 106 - JUSTICE/NC Private Protective Services Board: The rewritten rule submitted by the agency was approved 
by the Commission 

15A NCAC lOG .0404 - DENRAVildlife Resources Commission: The extended period of review had expired. The Commission 
objected to this rule due to lack of statutory authority and ambiguity. This objection applies to existing language in the rule. 

LOG OF FILINGS 

ViceChairman Smallwood presided over the review of the log and all rules were approved with the following exceptions: 

10 NCAC 14G .0102 - DHHS/Commission for MH/DD/SAS: The Commission objected to this rule due to lack of statutory authority 
and ambiguity. In (b)(41)(B), it is not clear what protective intervention techniques are specified in the "Protective Intervention 



13:2 



NORTH CAROLINA REGISTER 



Julv 15, 1998 



253 



R ULES RE VIE W COMMISSION 



Course Manual." There is no authority for limiting what is meant by "restraint" outside of rulemaking. The added sentence in (b)(42) 
is unclear. The provision is a definition of "seclusion." The sentence is written as a list of three things that are not "seclusion," but 
the last two appear to be simations when "seclusion" should not be used rather than a limitation on the term. This objection applies 
to existing language in the rule. 

COMMISSION PROCEDURES AND OTHER MATTERS 

The next meeting will be on July 23. 1998 which is one week later than normal. 

The meeting adjourned at 10:40 a.m. 

Respectfully submitted, 
Sand\ Webster 



254 NORTH CAROLINA REGISTER July 15, 1998 13:2 



CONTESTED CASE DECISIONS 



1 his Section contains the full text of some of the more significant Administrative Law Judge decisions along with an index 
to all recent contested cases decisions which are filed under North Carolina's Administrative Procedure Act. Copies of the 
decisions listed in the index and not published are available upon request for a minimal charge by contacting the Office of 
Administrative Hearings, (919) 733-2698. 



OFFICE OF ADMINISTRATIVE HEARINGS 

Chief Administrative Law Judge 

JULIAN MANN, III 

Senior Administrative Law Judge 

FRED G. MORRISON JR. 

ADMINISTRA TIVE LA W JUDGES 



Brenda B. Becton 
Sammie Chess Jr. 
Beecher R. Gray 
Melissa Owens 



Meg Scott Phipps 

Robert Roosevelt Reilly Jr. 

Dolores O. Smith 



AGENO 

ALCOHOLIC BEVERAGE CONTROL COMMISSION 

Alcoholic Beverage Control Commission v Jesse Jacob Joyner, Jr 



CASE 
NIMBER 



97 ABC 1438 



ALJ 



Phipps 



CRIME CONTROL AND PUBLIC SAFETY 

Marcella Skaggs v Crime Victims Compensation Commission 98 CPS 0065 Owens 

Talmadge E McHenrv v Crime Victims Compensation Commission 98 CPS 01 16 Gray 

Mia Thompson-Clark V Crime Victims Compensation Commission 98 CPS 0349 Chess 

ENVIRONMENT AND NATl RAL RESOl RCES 

John M Silvia V Department of Environment and Natural Resources 97EHR1646 Chess 

Roberto Goff, Sr v Department of Environment and Natural Resources 98EHR0072*- Gray 

Scotland Water. Cedar Circle V Environment and Natural Resources 98 EHR 0236 Smith 

Robert G Goff, Sr v Department of Environment and Natural Resources 98 EHR 0448*- Gray 

HEALTH AND HI MAN SERVICES 

Stanley C Ochulo v OfT/Administrative Hearings, Mr R Marcus Lodge 98DHR0021 Reilly 

Louise Streaterv Health and Human Services 98DHR0I96 Gray 

Division of Facility Services 

Sunlite Retirement Home. Winnie Jane Johnson v DHR, Facility Services 98 DHR 0124 Phipps 

Ann Davis Rest Home v Group Care Licensure Section 98DHR0197 Phipps 

Diane Lingard v DHR. Facility Svcs, Health Care Personnel Reg 98 DHR 0214 Becton 

Kimberly Annette Smith Hull V DHHS. Division of Facility Services 98 DHR 0239 Phipps 

Deborah Ann Holt v DHHS, Division of Facility Services 98 DHR 0348 Phipps 

Division of Social Services 

Child Support Enforcement Section 
Jefferv' Lee Graves v Department of Human Resources 
Donald L Carr. Jr v Department of Human Resources 
Marvin Diggs v Department of Human Resources 
Dennis Lee McNeill v Department of Human Resources 
Billy Anthony Jr v Department of Human Resources 
Alton D Bagley v Department of Human Resources 
Bemel B Beny Jr v Department of Human Resources 
Anthony Montgomerv' v Department of Human Resources 
Terry Letterman v Department of Human Resources 



DATE OF 
DECISION 



06/19/98 



06/05/98 
06/24/98 
05/14/98 



06/03/98 
06/25/98 
06/09/98 
06/25/98 



06/24/98 
06/03/98 



06/11/98 
06/23/98 
06/22/98 
06/23/98 
06/22/98 



PUBLISHED DECISION 
REGISTER CIT.4TION 



98CRA0137 


Becton 


06/23/98 


98CRA0545 


Reilly 


06/08/98 


98 CRA 0588 


Reillv 


06/24/98 


96CSE1305 


Gray 


06/22/98 


97CSE1393 


Reilly 


06/24/98 


97CSE 1424 


Chess 


06/02/98 


97 CSE 1435 


Smith 


06/12/98 


97 CSE 1442 


Phipps 


06/17/98 


97 CSE 1492 


Smith 


06/22/98 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



255 



CONTESTED CASE DECISIONS 



AGENCY 

Paul J Moble\,Jr v Department of Human Resources 
Wade A Burgess v Department of Human Resources 
Renardo Jenkins v Department of Human Resources 
Anthony Love v Department of Human Resources 
Steven Kent Gold v Department of Human Resources 
Tabatha D Pate v Department of Human Resources 
Charlie Gray Hunt Jr v Department of Human Resources 
Robert L WtllLams v Department of Human Resources 
Barbara Fanta-Blandme v Department of Human Resources 
Terita M Sharpe v Department of Human Resources 



CASE 




DATE OF 


NUMBER 


AU 


DECISION 


97CSE 1568 


Phipps 


06/17/98 


98CSE0071 


Morrison 


06/12/98 


98CSE0310 


Smith 


06/23/98 


98CSE0312 


Phipps 


06/23/98 


98CSE0333 


Morrison 


07/01/98 


98CSE0556 


Becton 


06/23/98 


98 CSE 0607 


Smith 


06/22/98 


98 CSE 0682 


Smith 


06/22/98 


97 DCS 1486 


Mortison 


06/22/98 


98 DCS 0468 


Mortison 


06/09/98 



PIBLISHED DECISION 
REGISTER CITATION 



JllSTICE 



Education and Training Standards Division 

Odis Fitzgerald Darden V SheritTs' Education & Training Standards Comm 97 DOJ 1698 Reilly 

William Scott Kev v Sheriffs' Education & Trainine Standards Comm 98 DOJ 0432 Becton 



06/12/98 
06/08/98 



STATE PERSONNEL 



Department of Correction 

Carl W Craven. II v Pender Cortectional Institution 

Crime Control and Public Safety 

Roger D Davis \ Crime Control & Public Safety. St Hwy Patrol 

Employment Security Commission 

Jane B Bolin and Arlene G Sellers v Employment Security Commission 
Jane B Bolin and Arlene G Sellers v Employment Security Commission 

Environment and Natural Resources 

Charles .Anthony Bruce v ENR. Division of Parks and Recreation 

Health and Human Services 

Ruth Holroyd v Montgomery Cty DSS. Children's Senices 

Anthony M Ruiz v Department of Health & Human Svcs, Youth Svcs 

University of North Carolina 

Deborah J Fenner v NC Central University 
Douglas Love. Jr \ UNC Hospitals 

STATE TREASl RER 

Hugh A Wells v Consolidated Judicial Retirement System of NC. 
Bd. of Trustees Teachers and State Employees' Retirement System 



98OSP0633 


Smith 


06/25/98 






97OSP0617 


Chess 


05/27/98 






97 0SP 1122"' 


Chess 


06/02/98 






97 0SP 1134*' 


Chess 


06/02/98 






98 OSP 0240 


Reilly 


06/08/98 






97 DSP 1586 


Smith 


05/27/98 


13 02 NCR 


257 


98 OSP 0454 


Gray 


06/04/98 






97 OSP 0902 


Chess 


05/29/98 






97 OSP 0662 


Reilly 


06/08/98 






98DST0316 


Morrison 


06/05/98 


13,01 NCR 


166 



TRANSPORTATION 

David Warten Deu et al \ Motor Vehicles. Alexander Killens Comm 



95 DOT 1144 



Grav 



06/04/98 



Consolidated Cases. 



256 



NORTH CAROLINA REGISTER 



July 15, 1998 



13:2 



CONTESTED CASE DECISIONS 



STATE OF NORTH CAROLINA 



MONTGOMERY COUNTY 



IN THE OFFICE OF 

ADMINISTRATIVE HEARINGS 

FILE NO. 97 OSP 1586 



RUTH HOLROYD, 
Petitioner, 



MONTGOMERY COUNTY DEPARTMENT OF SOCIAL 
SERVICES, DEPARTMENT OF CHILDREN'S SERVICES, 
Respondent. 



ORDER GRANTING SANCTIONS & 
DEFAULT JUDGMENT 



PETITIONER, having filed a Motion for Sanctions in accordance with N.C. Rules on Civil Procedure 26 and 37 and 26 
NCAC 3 .0114 and this Matter being heard on oral argument on May 6. 1998, the undersigned Administrative Law Judge makes the 
following: 

FINDINGS OF FACT 

1. Petitioner filed her Petition for Hearing against Respondent on December 4, 1997. A copy of the Petition was 
served on the DSS Director, Ms. Lois Ray at the following address: Montgomery County DSS, 102 East Main 
Street, Drawer N, Troy, N.C. 27371-0539. 

2. As a matter of professional courtesy. Petitioner also provided a copy of the Petition for Hearing to the Montgomery 
County Attorney, Mr. Russ Hollars at the following address: P.O. Box 567, Troy, N.C. 27371. Mr. Hollars has 
informed Counsel for Petitioner that Ms. Ray has declined legal representation from his office. 

3. On December 9, 1998, the undersigned Administrative Law Judge issued an Order for Pre-Hearing Statements, 
which were due by January 8, 1998, and served it upon Counsel for Petitioner and Lois Ray, the Montgomery 
County Director of DSS. 

4. Petitioner filed her Pre-Hearing Statement of January 8, 1998. 

5. Petitioner's First Interrogatories, Request for Production of Documents and First Request for Admissions were 
served on March 5, 1998 and received by Respondent on or about March 9, 1998. 

6. Respondent's Responses were due on March 24, 1 998, and as of the date of the Motion for sanctions, no Responses 
had been received. Respondent did not mark any objections or request for extension. 

7. On March 3, 1998, Petitioner issued a Notice of Deposition to Ms. Lois Ray for Wednesday March 18, 1998 at 
10:00. The Notice was sent certified mail and received by Respondent on March 4, 1998. Ms. Ray failed to appear 
for the deposition. No evidence was offered as to her reasons for failing to appear. 

8. After receiving the Motion to Compel & for Sanctions, Respondent filed a Pre Hearing Statement on April 2, 1 998. 

9. On April 2, 1998, Respondent filed its Pre Hearing Statement and this was the initial appearance of Kent Trull as 
attorney for the Montgomery County Department of Social Services. On April 13, 1998, Respondent attempted 
to file an Amended Pre Hearing Statement. 

10. On April 10, 1998, Petitioner received Respondent's Response to Petitioner's First Request for Admissions. Also 
on April 10, 1998, Petitioner received most of the responses to Petitioner's First Set of Interrogatories and First 



13:2 



NORTH CAROLINA REGISTER 



July 15, 1998 



257 



CONTESTED CASE DECISIONS 



Request for Production of Documents. Under 26 N.C. Admin. Code 3 .01 12(f), discovery responses were due 
within "... 15 days from receipt of a notice requesting discovery..." unless an extension is sought or objections are 
filed. Therefore, the discovery responses were due on March 24, 1998. 

11. At oral argument. Respondent admitted that the discovery responses were untimely. 

12. Respondent's evidence as to its failure to file a timely Pre Hearing Statement, to file discovery response and to 
appear at the deposition was that the envelopes transmitting such documents had remained Unopened. 

13. Respondent retained counsel and made an effort to comply with discovery and the Orders only after the Motion 
for Sanctions had been filed. 

14. Based on the Statement of Fees Costs which was submitted by Petitioner's counsel, the time and labor expended, 
the skill required, the customary fee for like work, the experience and ability of plaintiff s counsel, the services 
rendered and the hourly rate of the fees are all determined to be reasonable. 

WHEREFORE, the undersigned Administrative Law Judge makes the following: 

CONCLUSIONS OF LAW 

1. Respondent did not respond to Petitioner's discovery in a timely manner since the Responses were provided after 
the Motion for Sanctions and to Compel was filed. Discovery Responses filed after a Motion for Sanctions are still 
untimeK and do not prevent imposition of costs. See First Citizens v, Powell, 58 N.C.App. 229, 292 S.E.2d 7-3) 
1 (1982). affd3 )07 N.C. 467, 298 S.E.2d 386 (1983); see also. Cheek v. Poole. 121 N.C.App. 370, 465 S.E.2d 
561(1996). Therefore. Respondent acted in violation of Rule 12 of the Rules of Procedure of the Office of 
Administrative Hearings and contrary to Rule 37 of the N.C. Rules of Civil Procedure. 

2. Respondent's failure to file timeK discovery response constitutes a waiver of any objections. Respondent's failure 
to request an extension of time or to request a Protective Order also constitutes a waiver. 

3. Respondent's failure to file a timeK Pre Hearing Statement is a violation of Orders issued BV an Administrative 
Law Judge and therefore a violation of Rule -37(b). 

4. Respondent's failure to appear at a deposition is a violation of Rule 37(d). 

5. Respondent's failure to comply with the Order for Pre Hearing Statements and with the rules governing discovery 
was willful and without good cause. 

6. Respondent failed to meets its burden to present sufficient evidence of good cause, substantial justification or other 
circumstances to show that an award of expenses would be unjust. Therefore, under Rule 37(a)(4). an award of 
attomcN fees for the Motion to Compel and for Sanctions is appropriate. 

7. None of the failures of Respondent to act in a timeK and good faith manner should be attributed to Mr. Trull, who 
acted diligentK and good faith once he was retained. 

8. Petitioner's request for attome> fees and costs in connection with the Motion to Compel and for Sanctions is hereby 
granted in the amount of $484.00 in attorney fees and $65.77 in costs (court reporter's fee and certified mail fee). 
Based on the Affidavit of Fees & Costs which was submitted by Plaintiff the time and labor expended, the skill 
required, the customary fee for like work, the experience and ability of plaintiff s counsel, the services rendered 
and the hourK rate of the fees are all determined to be reasonable. 

9. Under Rule .01 14(a) and Rule 37(b)(2)c. the undersigned Administrative Law Judge issues a Default Judgment and 
Sanctions against Respondent such that; 

A. It is herebN determined that the issues and allegations in the Petition for Hearing and Pre Hearing 
Statement are taken as true; 

B. An\ documentar\ evidence at the hearing of this matter or oral testimony by Respondent's wimesses 



258 NORTH CAROLINA REGISTER July 15, 1998 13:2 



CONTESTED CASE DECISIONS 



is hereby excluded; 

C. Respondent's untimely pleadings, particularly the attempted Amended Pre Hearing Statement are 

stricken. 

Based upon the above Conclusions of Law, the undersigned makes the following 

RECOMMENDED DECISION 

1 . Petitioner was not dismissed for just cause and was denied reasonable accommodation for her disability. 

2. In accordance with 25 N.C.A.C. 1 B .0428. the Respondent shall reinstate Petitioner into a comparable position to 
the one from which she was terminated. 

3. In accordance with 25 N.C.A.C. I B .0414(a), the Respondent shall pay attorney fees and costs in an amount that 
the State Personnel Commission determines to be reasonable. 

4. The Respondent shall remove all information pertaining to Petitioner's dismissal from her personnel file. 

ADDENDUM 

As noted above, sanctions have been applied against the Respondent. In determining the appropriate remedy, the undersigned 
has considered the behavior of the Respondent as well as the harm done to the Petitioner. While the Petitioner has requested back 
pay and reinstatement of lost benefits, the undersigned has determined that that remedy is inappropriate under the circumstances. The 
Petitioner shall be reinstated and receive attorney's fees which will make her "whole." 

However, the Petitioner who was employed at the Respondent Department of Social Services for approximately one month 
before being involved in an automobile accident is not, in the undersigned's opinion entitled to back pay from 1997 to 1998. Such 
an award would not be equitable to the Respondent and would be a windfall to the Petitioner. 

NOTICE 

In order to appeal a Final Decision, the person seeking review must file a Petition in the Superior Court of Wake County 
or in the superior court of the county where the person resides. The Petition for Judicial Review must be filed within thirty (30) days 
after the person is served with a copy of the Final Decision. G.S. 1 50B-46 describes the contents of the Petition and requires service 
of the Petitioner on all parties. 

This the 27th day of May, 1 998. 



Dolores O. Smith 
Administrative Law Judge 



13:2 NORTH CAROLINA REGISTER July 15, 1998 259 



NORTH CAROLINA ADMINISTRATIVE CODE CLASSIFICATION SYSTEM 



1 he Xorib Carolina Administrative Code fNCACj has four major subdivisions of rules. Two of these, titles and 
chapters, are mandatory. The major subdivision of the XCAC is the title. Each major department in the North 
Carolina executive branch of government has been assigned a title number. Titles are further broken down into 
chapters which shall be numerical in order. The other two. subchapters and sections are optional subdivisions to 

be used by a<^encies when appropriate. 



appropr 



TITLE/MAJOR DFV ISIONS OF THE NORTH CAROLINA ADMINISTRATFV E CODE 
TITLE DEPARTMENT LICENSING BOARDS CHAPTER 



1 


Administration 


Acupuncture 


1 


-> 


Agriculture 


.Architecture 


2 


J 


Auditor 


Athletic Trainer Examiners 


3 


4 


Commerce 


Auctioneers 


4 


5 


Correction 


Barber Examiners 


6 


6 


Council of State 


Certified Public Accountant Examiners 


8 


7 


Cultural Resources 


Chiropractic Examiners 


10 


8 


Elections 


Emplo\ ee Assistance Professionals 


11 


9 


Governor 


General Contractors 


12 


10 


Health and Human Sen ices 


Cosmetic .Art Examiners 


14 


11 


Insurance 


Dental Examiners 


16 


12 


Justice 


Dietetics Nutrition 


17 


13 


Labor 


Electrical Contractors 


18 


14A 


Crime Control & Public Safet> 


Electrolysis 


19 


15A 


En\ ironment and Natural 


Eoresters 


20 




Resources 


Geologists 


21 


16 


Public Education 


Hearing Aid Dealers and Fitters 


22 


17 


Re\enue 


Landscape -Architects 


26 


18 


Secretap. of State 


Landscape Contractors 


28 


19A 


Transportation 


Marital and Famih Therap\ 


31 


20 


Treasurer 


Medical Examiners 


32 


*21 


Occupational Licensing Boards 


Midwifen. Joint Comminee 


33 


-»-) 


Administratis e Procedures 


Mortuan. Science 


34 


23 


Communit\ Colleges 


Nursing 


36 


24 


Independent Agencies 


Nursing Home Administrators 


37 


25 


State Personnel 


Occupational Therapists 


38 


26 


Administratis e Hearings 


Opticians 


40 


-)7 


NC State Bar 


Optometry 


42 






Osteopathic Examination & Reg. (Repealed) 


44 






Pastoral Counselors. Fee-Based Practicing 


45 






Pharmacy 


46 






Phvsical Therapx Examiners 


48 






Plumbing. Heating & Fire Sprinkler Contractors 


50 






Podiatry Examiners 


52 






Professional Counselors 


53 






Psychology Board 


54 






Professional Engineers & Land Sur%e\ors 


56 






Real Estate Appraisal Board 


S" 






Real Estate Commission 


58 






Refrigeration Examiners 


60 






Sanitarian Examiners 


62 






Social Work Certification 


63 






Soil Scientists 


69 






Speech & Language Pathologists & .'^udiologists 


64 






Substance .Abuse Professionals 


68 






Therapeutic Recreation Certification 


65 






\'eterinar\ Medical Board 


66 



Note: Title 21 contains the chapters of the \arious occupational licensing boards. 



260 



NORTH CAROLINA REGISTER 



July 15, 1998 



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